EXHIBIT 10.7D
FIRST AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
This FIRST AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"Amendment"), dated as of February 13, 2004, is by and among INFOCROSSING, INC.,
a Delaware corporation (the "Borrower"), the Subsidiaries of the Borrower that
are signatories hereto (collectively, the "Guarantors"), the financial
institutions that are parties hereto as "Lenders" (together with any other
financial institutions that become parties to the Loan Agreement defined below,
in each case with their successors and assigns, collectively, the "Lenders"),
and CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, as such a
Lender and as Agent for the Lenders (this and all other capitalized terms used
but not otherwise defined herein shall have the respective meanings ascribed to
such terms in Section 1 below).
R E C I T A L S:
A. The Borrower, Infocrossing Agent, Inc. (the "Prior Agent") and
certain "Lenders" (collectively, the "Prior Lenders") entered into that certain
Term Loan Agreement dated as of October 21, 2003 (the "Existing Loan Agreement;"
the Existing Loan Agreement, as amended hereby, and as the same further may be
amended, modified, supplemented or restated in accordance with its terms and as
in effect from time to time, the "Loan Agreement"), pursuant to and subject to
the terms and conditions of which, among other things, such Prior Lenders
initially extended a certain term loan to the Borrower.
B. On the date hereof, and effective immediately prior, and as a
condition precedent, to the effectiveness of this Amendment, (i) the Borrower,
the Prior Agent, the Prior Lenders and the Lenders entered into that certain
Assignment and Assumption Agreement (the "Assignment and Assumption Agreement"),
pursuant to and subject to the terms and conditions of which, among other
things, the Prior Lenders assigned and delegated to the Lenders, for value, all
of their Commitments, Loans and other interests in the Loan Obligations to the
Lenders and (ii) the Borrower, the Prior Agent, the Agent and the Lenders
entered into that certain Agreement Regarding Transitional Matters (the "Agency
Assignment"), pursuant to and subject to the terms and conditions of which,
among other things, the Prior Agent assigned and delegated to the Agent all of
its obligations as "Agent" under the Loan Documents.
C. As a condition to execution and delivery of the Assignment and
Assumption Agreement and the Agency Assignment by the Agent and the Lenders,
CapitalSource Finance LLC required the Borrower to agree to amend and modify the
Existing Loan Agreement as herein set forth, and the parties hereto desire to so
amend and modify the Existing Loan Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not elsewhere defined herein
shall have the respective meanings ascribed to such terms in the Loan Agreement.
2. Amendments to the Existing Loan Agreement. The Existing Loan
Agreement is amended as follows:
2.1 Cover Page. The Cover Page of the Existing
Loan Agreement hereby is amended by deleting the reference to
"Infocrossing Agent, Inc. as Agent" and substituting "CapitalSource
Finance LLC as Agent" in lieu thereof
2.2 Section 1.1 - Substituted Definitions. Section 1.1 of the
Existing Loan Agreement hereby is amended by substituting the following
definitions of the terms set forth below in lieu of the current
versions of such definitions contained in the Existing Loan Agreement:
"Agent": CapitalSource Finance LLC, as agent for the
Lenders under this Agreement and the other Loan Documents,
together with its successors and assigns in such capacity.
"Loan": collectively, any term loan held by any
Lender pursuant to this Agreement, plus the amount of any
additional loans made under the Loan Interest Reserve pursuant
to Section 2.1(c) (the aggregate amount of which additional
loans shall not exceed $625,000), and such term loans and
additional loans being referred to collectively as the
"Loans."
"Permitted Acquisition": the acquisition by the
Borrower or any Domestic Subsidiary of the Borrower of all or
any portion of the assets or stock or other equity interests
of any Person engaged in a business that would be permitted
under subsection 6.15, including pursuant to a merger or
consolidation; provided that all such acquisitions are
approved by the Board of Directors and stockholders, if
required, of the Borrower or such Domestic Subsidiary and the
acquiree and are not otherwise hostile and, in the case of a
merger (x) involving the Borrower, the surviving entity is the
Borrower or (y) involving any such Domestic Subsidiary, the
surviving entity is such Domestic Subsidiary or otherwise
becomes a Loan Party upon consummation thereof; and provided,
further, that:
(i) if such acquisition is an asset
acquisition, the subject assets are located in the
continental United States or, if such acquisition is
a stock or other equity acquisition or a merger, the
acquiree or target is an entity incorporated or
otherwise organized under the laws of a State of the
United States;
(ii) on the closing date of such
acquisition, both before and immediately after giving
effect to such proposed acquisition, no Default or
Event of Default has occurred or will occur or be
continuing;
(iii) after giving effect to any such
acquisition there shall be no negative effect on
Consolidated EBITDA on a pro forma basis, and the
Borrower would remain in compliance with the
covenants set forth in subsection 6.1 on a pro forma
basis (determined on a pro forma basis (A) as of the
last day of the most recently ended fiscal quarter of
the Borrower for which financial statements are
available (computed on the basis of (x) balance sheet
amounts as of the most recently completed fiscal
quarter, and (y) income statement amounts for the
most recently completed period of four consecutive
fiscal quarters) and (B) on the basis of twelve month
projections updated to give effect to such
acquisition) and the Borrower delivers a certificate
of a Responsible Officer certifying compliance with
this clause (iii); and
(iv) any Person or business acquired becomes
a wholly-owned Subsidiary of the Borrower or of a
Guarantor following such acquisition and such Person
becomes a Guarantor, and the Borrower shall, and
shall cause any applicable Subsidiary to, execute any
documents and take all actions that may be required
under applicable law or that the Agent reasonably may
request, in order to comply with subsection 5.10
herein, and the Borrower shall have used commercially
reasonable efforts to either (A) obtain and deliver
to Agent a collateral assignment of representations,
warranties and indemnities in respect of the
documentation evidencing such acquisition,
acknowledged in writing by the related sellers
thereunder, or (B) include in such documentation a
provision expressly permitting such a collateral
assignment, in each case in form and substance
satisfactory to the Agent.
2.3 Section 1.1 - Additional Definitions. Section 1.1 of the
Existing Loan Agreement hereby is amended further by adding the
following terms and respective definitions to such Section 1.1 in the
appropriate alphabetical order:
"Effective Date": as defined in the First Amendment
and which, for all purposes under this Agreement, shall be
deemed to be the date of the First Amendment.
"First Amendment": that certain First Amendment
to Loan Agreement and other Loan Documents dated as of
February 13, 2004 among the Borrower, its Subsidiaries, the
Agent and the Lenders.
"Loan Interest Reserve": as of any date, a reserve
equal to the amount, if any, by which (a) the product of (x)
2.5% (two and one-half percent), multiplied by (y) $25,000,000
less the amount of repayments of the Loans pursuant to Section
2.2(a)(i) as and when made, exceeds (b) all additional loans
made by the Lenders under the Loan Interest Reserve pursuant
to Section 2.1(c) of the Loan Agreement after the Effective
Date.
"Prepayment Premium Amount": with respect to any
prepayment of the Loans to which a Prepayment Premium Amount
is to be calculated, the greater of (x) two percent (2.0%) of
the amount so prepaid and (y) Related Yield Maintenance Fee in
respect of such amount so prepaid.
"Related Yield Maintenance Fee": with respect to any
prepayment of the Loans, the present value (discounted at the
one year Treasury rate in effect on the day that is two (2)
Business Days prior to the date on which such prepayment is
made, determined by the Agent in its reasonable discretion) of
the total interest and fees which could be earned on the
amount so prepaid from the effective date of such prepayment
through the date that is the first anniversary of the
Effective Date.
"Subject Period": see Section 2.3(a).
2.4 Section 2.1. Section 2.1 of the Existing Loan Agreement
hereby is amended by adding the following clause (c) to such Section
2.1 in the appropriate alphabetical order:
Upon the failure of the Borrower to pay interest
pursuant to the terms of this Agreement when due after giving
effect to any applicable grace period for such payment of
interest (the amount of any such overdue unpaid interest, the
"Past Due Interest"), and regardless of whether or not any
other Default or Event of Default then exists or would result
therefrom, the Agent shall be entitled, in its sole and
absolute discretion, to cause the Lenders to make additional
loans to the Borrower the proceeds of which shall be used by
the Borrower to pay such Past Due Interest; provided that such
additional loans shall not exceed in the aggregate the Loan
Interest Reserve then in effect (each such additional loan, an
"Interest Advance"), and each such Interest Advance shall be
deemed part of the outstanding principal balance of the Loans
and shall constitute Loan Obligations. The Borrower hereby
irrevocably and unconditionally agrees to pay to the Agent,
for the ratable benefit of the Lenders, all Interest Advances
in accordance with the payment terms relating to the other
portions of the Loans. Any Event of Default arising from the
failure of the Borrower to pay interest pursuant to this
Agreement when due (after the expiration of any grace period
for such payment) shall be deemed cured by utilization of the
Loan Interest Reserve; provided, that, the making of Interest
Advances shall not be deemed to cure any other Default or
Event of Default that may then exist or result therefrom.
2.5 Section 2.3(a). Section 2.3(a) of the Existing
Loan Agreement hereby is deleted in
its entirety and the following is substituted in lieu thereof:
2.3 Prepayments. (a) The Borrower shall have the
right at any time and from time to time to prepay the Loans in
whole or in part subject to the requirements of this Section
without penalty or premium; provided, that (i) if the Borrower
has entered into an agreement for a Change of Control or the
Borrower or any other Person otherwise has publicly announced
its intention to consummate a transaction that would institute
a Change of Control, in either case after the last day of the
Subject Period (as defined below), the Borrower may only
prepay the Loans at a prepayment amount equal to the Fixed
Early Prepayment Amount, plus accrued and unpaid interest to
the date of prepayment, and (ii) if the Borrower optionally
prepays any portion of the Loans pursuant to Section 2.3(a)
during the period commencing on the Effective Date and ending
on the first anniversary thereof (the "Subject Period"), the
Borrower shall pay to the Agent, for the ratable benefit of
the Lenders, an amount equal to the applicable Prepayment
Premium Amount applicable to the amount so prepaid, which
Prepayment Premium Amounts shall be due and payable on the
respective dates of prepayment; provided, that:
(I) the Borrower shall not be required to
pay any such Prepayment Premium Amount unless the
aggregate amount of all prepayments made during the
Subject Period exceed $15,000,000 in total, in which
case the Borrower shall be required to pay Prepayment
Premium Amounts in accordance with the foregoing in
respect of all prepayments of Loans made during the
Subject Period (excluding the first $15,000,000 of
such prepayments made during the Subject Period); and
(II) if, during the Subject Period:
(1) the Borrower shall have
delivered to the Agent a term sheet,
commitment letter or letter of intent
describing the material terms of a proposed
Specified Acquisition (the "Presented
Terms");
(2) the Loan Obligations are either
(x) prepaid in full in cash from the
proceeds of any refinancing made by any
financial institution other than
CapitalSource Finance LLC and that is not an
Affiliate of the Borrower (a "Third Party
Financing Source") or (y) purchased in full
by a Third Party Financing Source at par
(plus accrued and unpaid interest, fees and
other amounts then due and owing) (any
transaction of the type described in this
clause (2) is referred to as a "Third Party
Refinancing"); and
(3) (x) such Third Party Refinancing
occurred within sixty (60) days after the
Agent shall have notified the Borrower in
writing that the Required Lenders intend to
withhold consent to a Specified Acquisition
based on the Presented Terms and (y) prior
to the occurrence of such Third Party
Refinancing, the related Third Party
Financing Source shall have consented in
writing to the consummation of such
Specified Acquisition on terms substantially
similar to the Presented Terms;
then the Borrower shall not be required to
pay a Prepayment Premium Amount in respect of such
full prepayment. For purposes of the foregoing, a
"Specified Acquisition" shall mean an acquisition
that otherwise constitutes a Permitted Acquisition,
the total cash purchase price (specifically excluding
any Indebtedness or other obligations to be assumed
or incurred in connection therewith and the value of
any non-cash consideration, including any imputed
value of any non-competition, non-solicitation and
similar arrangements) of which exceeds $10,000,000,
2.6 Section 2.6. Section 2.6 of the Existing Loan
Agreement hereby is amended by adding
the following sentence to the end of such Section 2.6:
"The Borrower absolutely and unconditionally promises
to pay, when due and payable pursuant hereto, principal,
interest and all other amounts and Loan Obligations payable
hereunder and under any other Loan Document, without any right
of rescission and without any deduction whatsoever, including
any deduction for set-off, recoupment or counterclaim,
notwithstanding any damage to, defects in or destruction of
the Collateral or any other event, including obsolescence of
any Property or improvements."
2.7 Section 6.2. Section 6.2 of the Existing Loan Agreement
hereby is amended by (x) deleting the word "and" at the end of clause
(h) of such Section 6.2, (y) deleting the "." at the end of clause (i)
of such Section 6.2 and substituting "; and" in lieu thereof and (z)
adding the following clause (j) to such Section 6.2 in the appropriate
alphabetical order:
(i) unsecured Indebtedness of the Borrower or any of
its Subsidiaries in an aggregate principal amount (for the
Borrower and all Subsidiaries) not to exceed $1,000,000 at any
time outstanding.
2.8 Section 6.9. Section 6.9 of the Existing Loan Agreement
hereby is amended by deleting clause (h) contained in such Section 6.9
and substituting the following clause (h) in lieu thereof:
(h) Permitted Acquisitions by the Borrower or any of
its Subsidiaries to the extent the total cash purchase price
(specifically excluding any Indebtedness or other obligations
to be assumed or incurred in connection therewith and the
value of any non-cash consideration, including any imputed
value of any non-competition, non-solicitation and similar
arrangements) of all such Permitted Acquisitions does not
exceed $10,000,000 during the term of this Agreement.
2.9 Section 7. Section 7 of the Existing Loan Agreement hereby
is amended by (i) deleting the "." at the end of clause (i) thereof and
substituting a "; or" in lieu thereof and (ii) adding the following
clause (j) immediately after such clause (i) in the appropriate
alphabetical order:
(j) the Borrower or any of its Subsidiaries shall be
criminally indicted or convicted of a felony or under any law
that could lead to a forfeiture of any material (as determined
by Agent in its reasonable discretion) Collateral;
2.10 Section 7. Section 7 of the Existing Loan Agreement
hereby further is amended by adding the following sentence to the end
of such Section 7:
Without limiting the foregoing, upon the occurrence
and during the continuance of any Event of Default, the Agent
may, and shall at the request of the Required Lenders,
exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan
Documents, applicable law (including, without limitation, the
Uniform Commercial Code) or otherwise.
2.11 Section 9.2. Section 9.2 of the Existing Loan
Agreement hereby is deleted in its
entirety and the following is substituted in lieu thereof:
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by facsimile transmission) and, unless
otherwise expressly provided herein, shall be deemed to have
been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three
days after being deposited in the mails, postage prepaid, or
(c) in the case of delivery by facsimile transmission, when
sent and receipt has been confirmed, addressed as follows in
the case of the Borrower and the Agent, and as set forth in
Schedule I in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective
parties hereto:
The Borrower: Infocrossing, Inc.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Senior Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Agent: CapitalSource Finance LLC
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
provided that any notice, request or demand to or upon the
Agent or the Lenders shall not be effective until received.
2.12 Section 9.6(c). Section 9.6(c) of the Existing Loan
Agreement is amended by adding the following sentences to the end of
such Section 9.6(c):
Anything contained in the Loan Documents to the
contrary notwithstanding, (i) CapitalSource Finance LLC and its
Affiliates shall not be required to execute and deliver any
assignment and assumption agreement in connection with any
transaction involving its Affiliates or its or its Affiliates'
lenders or funding or financing sources, (ii) no lender to or
Affiliate, funding or financing source of CapitalSource Finance
LLC or its Affiliates shall be considered a Lender hereunder,
and (iii) there shall be no limitation or restriction on (A)
the ability of CapitalSource Finance LLC, any of its Affiliates
or any of its or its Affiliates' lenders or funding or
financing sources to assign or otherwise transfer any Loan
Document, Commitment or Loan Obligation to any Affiliate,
lender or financing or funding source or (B) any such lender's
or funding or financing source's ability to assign or otherwise
transfer any Loan Document, Commitment or Loan Obligation;
provided, however, CapitalSource Finance LLC shall continue to
be liable as a "Lender" under the Loan Documents unless such
Affiliate, lender or funding or financing source executes an
assignment and assumption agreement and becomes a "Lender."
Further, Section 9.15(b) shall not prohibit or restrict
CapitalSource Finance LLC, or any of its Affiliates, lenders or
funding or financing sources, from disclosing any non-public
information referred to therein to any of their respective
Affiliates, lenders or funding or financing sources.
2.13 Schedules and Exhibits. Schedules I and 2.1 currently
attached to the Existing Loan Agreement are replaced by Schedules I and
2.1 attached hereto.
2.14 Additional Agreements and Representations and Warranties
of the Borrower. Without limiting any of the representations,
warranties, covenants, agreements and obligations of the Borrower and
its Subsidiaries under the Loan Agreement and the other Loan Documents,
the Borrower hereby:
(a) agrees that, so long as any amount is owing to
any Lender or the Agent under the Loan Agreement or under any
other Loan Document:
(i) the Borrower shall furnish to each
Lender, concurrently with the delivery of the
financial statements referred to in subsection
5.1(a), (b) and (c), a certificate of a Responsible
Officer evidencing the compliance by the Borrower and
its Subsidiaries with the financial covenants
contained in Section 6.1, including a calculation
thereof, as of the last day of the period covered by
such financial statements;
(ii) the Borrower shall not, and shall not
permit or cause any of its Subsidiaries to, create,
form, organize or permit to exist any Foreign
Subsidiaries, including, without limitation, for
purposes of consummating any acquisition;
(iii) the Borrower shall not, and shall not
permit or cause any of its Subsidiaries to, create,
incur, assume or suffer to exist any Indebtedness
that otherwise would have been permitted to exist
under Section 6.2(i) of the Loan Agreement (or permit
to exist any Lien as security therefor) unless and
only to the extent, prior to any such creation,
incurrence, assumption or sufferance, the Borrower,
the Subsidiaries, the to-be-holders of such
Indebtedness and the Agent, for the benefit of the
Lenders, shall have entered into an intercreditor and
subordination agreement in form and substance
satisfactory to the Agent;
(iv) upon request by the Agent or any
Lender, and in any event within three (3) Business
Days of any such request, the Borrower shall execute
and deliver to the Agent new Notes and/or split or
divide the Notes in exchange for then existing Notes
in such smaller amounts or denominations as the Agent
or such Lender shall specify in their respective sole
and absolute discretion (and no Lender shall be
required to return an existing Note to the Borrower
until receipt of a new Note); provided, that the
aggregate principal amount of such new, split or
divided Notes does not exceed the aggregate principal
amount of such existing Notes to be exchanged
therefor; and
(v) the Borrower shall not issue any
preferred stock or other equity interests or
securities that provide for mandatory cash dividends
or distributions or put rights or mandatory
redemptions thereof, in each case prior to the
payment in full in cash of the Loan Obligations; and
(b) represents and warrant to and for the benefit of
the Agent and the Lenders that, as of the date hereof: (i)
neither the Borrower nor any Subsidiary of the Borrower has
any Subsidiaries other than those Persons who are signatories
hereto; (ii) the outstanding equity securities of the Borrower
and each of its Subsidiaries have been duly authorized and
validly issued and are fully paid and nonassessable; and (iii)
neither the Borrower nor any of its Subsidiaries (a) has
issued any rights which can be convertible into or
exchangeable or exercisable for any of the equity securities
of any such Subsidiary, or any rights to subscribe for or to
purchase, or any options for the purchase of, or any
agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any
character relating to, any such equity securities of any
Subsidiary of the Borrower or any securities convertible into
or exchangeable or exercisable for any such equity securities
or (b) is subject to any obligation (contingent or otherwise)
to repurchase or otherwise acquire or retire any of the equity
securities of the Borrower or any of its Subsidiaries or other
convertible rights or options or debt securities.
3. Conditions to Effectiveness. The effectiveness of this Amendment
shall be subject to the satisfaction of all of the following conditions in a
manner, form and substance satisfactory to the Agent:
(a) Representations and Warranties. All of the representations
and warranties of the Borrower and each of its Subsidiaries set forth
in the Existing Loan Agreement and the other Loan Documents (including,
without limitation, this Amendment) to the extent such Person is a
party thereto shall be true and correct in all material respects (or,
with respect to any such representation or warranty that, by its terms,
is qualified by materiality, Material Adverse Effect or similar
qualification, such representation or warranty shall be true and
correct in all respects), except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects as of such earlier date (or, with respect to any such
representation or warranty that, by its terms, is qualified by
materiality, Material Adverse Effect or similar qualification, such
representation or warranty shall be true and correct in all respects).
(b) Delivery of Documents. The following shall have been
delivered to the Agent, each duly authorized and executed, as
applicable:
(1) this Amendment;
(2) Notes payable to the order of each Lender in
their respective Pro Rata Share of the Loan (each of which
Notes payable to CapitalSource Finance LLC shall be in maximum
denominations of $5,000,000);
(3) such evidence of the authority of the Borrower
and each of its Subsidiaries to execute and deliver this
Amendment and all other Loan Documents delivered in connection
herewith as the Agent may require, including, but not limited
to, (i) a copy of resolutions duly adopted by the board of
directors of each such Person, authorizing the execution by
each such Person of this Amendment and the other agreements,
documents and instruments to be executed by each such Person
pursuant to this Amendment (collectively, the "Other Amendment
Documents"), certified as complete and correct by a
Responsible Officer of each such Person, and (ii) a
certificate of the secretary or assistant secretary of each
such Person to the effect that neither the articles of
incorporation nor the bylaws of such Person have been amended
or modified since the Closing Date or, if more recent than the
Closing Date, the date on which certified copies of such
documents previously were delivered to the Agent;
(4) a good standing and, if available, tax good
standing certificate, for the Borrower and each Subsidiary of
the Borrower from the Secretary of State (or similar,
applicable Governmental Authority) of its state of
incorporation or formation, as applicable;
(5) unaudited consolidated and consolidating
financial statements of the Borrower and its Subsidiaries as
of the end of December 31, 2003, which financial statements
shall be prepared in accordance with GAAP consistently applied
with prior periods (subject to lack of footnotes and year-end
adjustments), and monthly projections with respect to the
Borrower and its Subsidiaries for the twelve (12) months after
the month in which the Effective Date occurs, certified on
behalf of the Borrower by a Responsible Officer;
(6) standard lenders' loss payable endorsements in
favor of the Agent, for the benefit of the Agent and the
Lenders, with respect to the insurance policies or other
instruments or documents evidencing insurance coverage on the
properties of the Borrower and its Subsidiaries in accordance
with the provisions of the Loan Agreement and endorsements to
all liability insurance policies naming the Agent and the
Lenders as additional insureds thereunder;
(7) the Assignment and Assumption Agreement;
(8) a certificate executed by a Responsible Officer
of the Borrower on behalf of the Borrower certifying to the
Agent and the Lenders that all necessary governmental,
regulatory, creditor, shareholder, partner, member and other
material consents, approvals and exemptions required to be
obtained by the Company in connection with the transactions
evidenced hereby have been duly obtained and are in full force
and effect;
(9) a certificate signed by a Responsible Officer of
the Borrower dated as of the Effective Date affirming the
matters set forth in this Section 3 and the satisfaction of
the conditions precedent herein contained; and
(10) such other instruments, documents, certificates,
consents, waivers and opinions (including opinions from ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel to the Borrower and its Subsidiaries) as
the Agent reasonably may request.
(c) Assignment and Assumption Agreement; Agency Assignment.
The transactions contemplated by the Assignment and Assumption
Agreement and the Agency Assignment shall have been consummated in
accordance with the respective terms thereof, and all deliveries and
other conditions therein contained shall have been made or otherwise
satisfied.
(d) No Default. No Default or Event of Default shall exist or
be created hereby.
(e) No Material Adverse Effect. No Material Adverse Effect
shall have occurred since December 31, 2002.
(f) Copies of Documents. Delivery to Agent of copies,
certified by a Responsible Officer of the Borrower, of the material
Loan Documents.
(g) Search Results; Lien Terminations. Delivery to Agent of
certified copies of Uniform Commercial Code Requests for Information or
Copies (Form UCC-11), or a similar search report certified by a party
acceptable to the Agent, dated a date reasonably near to the Effective
Date, listing all effective financing statements which name the
Borrower and each of its Subsidiaries (under their present names and
any previous names) as debtors and which are filed in the jurisdictions
in which filings are to be made pursuant to the Loan Documents,
together with (i) copies of such financing statements, (ii) executed
copies of proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of
any Person in any collateral described in the Loan Documents previously
granted by any Person (other than Liens permitted by under the Loan
Agreement) and (iii) such other Uniform Commercial Code Form UCC-3
termination statements and/or Uniform Commercial Code amendments or
modifications as the Agent may request, including, without limitation,
amendments to evidence the change in agency pursuant to the Agency
Assignment.
(h) Filings, Registrations and Recordings. The Agent shall
have received each document (including Uniform Commercial Code
financing statements and in lieu financing statements or amendments
thereto) required by the Loan Documents or under law or reasonably
requested by the Agent to be filed, registered or recorded in order to
create in favor of the Agent, for the benefit of the Agent and the
Lenders, a perfected Lien on the Collateral described therein, prior
and superior to any other Person, in proper form for filing,
registration or recording.
(i) Satisfaction of the Agent's Counsel. All legal matters
incident to the transactions contemplated hereby shall be reasonably
satisfactory to counsel for the Agent.
The date on which the foregoing conditions shall have been satisfied shall be
referred to herein as the "Effective Date." The execution and delivery of this
Amendment by the Borrower and the Guarantors shall be deemed a representation
and warranty by such Persons that the foregoing conditions precedent have been
satisfied in all respects as of the date hereof.
4. References. From and after the Effective Date, all references in the
Existing Loan Agreement and the other Loan Documents to the Loan Agreement shall
be deemed to refer to the Existing Loan Agreement, as amended hereby. This
Amendment, the Assignment and Assumption Agreement and the Agency Assignment
each constitutes a Loan Document.
5. Representations and Warranties. The Borrower and each of its
Subsidiaries (individually, an "Obligor" and collectively, the "Obligors") each
hereby confirms to the Agent and the Lenders that the representations and
warranties set forth in the Existing Loan Agreement and the other Loan Documents
are true and correct in all material respects as of the date hereof (or, with
respect to any such representation or warranty that, by its terms, is qualified
by materiality, Material Adverse Effect or similar qualification, such
representation or warranty are true and correct in all respects), except to the
extent such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and
correct in all material respects as of such earlier date (or, with respect to
any such representation or warranty that, by its terms, was qualified by
materiality, Material Adverse Effect or similar qualification, such
representation or warranty shall have been true and correct in all respects).
Each Obligor further represents and warrants to the Agent and the Lenders that
(a) it has full power and authority to execute and deliver this Amendment and
the Other Amendment Documents and to perform its obligations hereunder and
thereunder, (b) upon the execution and delivery hereof and thereof, this
Amendment and the Other Amendment Documents will be valid, binding and
enforceable upon it in accordance with their respective terms, subject to
bankruptcy, insolvency and similar laws affecting the enforceability of
creditors' rights generally and to general principles of equity, (c) the
execution, delivery and performance of this Amendment and/or the Other Amendment
Documents do not and will not contravene, conflict with, violate or constitute a
default under (i) the articles of incorporation, certificate of limited
partnership, bylaws or agreement of limited partnership of such Obligor, as
applicable, or (ii) any applicable law, rule or regulation, or any judgment,
decree or order, of which such Obligor has knowledge or any material agreement,
indenture or instrument to which such Obligor is a party or is bound or which is
binding upon or applicable to all or any portion of its property and (d) no
Default or Event of Default presently exists.
6. Reserved.
7. No Further Amendments; Ratification of Liability; Waiver. Except as
amended hereby, the Existing Loan Agreement and each of the other Loan Documents
shall and do remain in full force and effect in accordance with their respective
terms. Each Obligor, as a debtor, grantor, pledgor, guarantor or assignor, or in
any similar capacity in which it has granted Liens or acted as an accommodation
party or guarantor, as the case may be, hereby ratifies, confirms and reaffirms
its liabilities, its payment and performance obligations (contingent or
otherwise) and its agreements under the Existing Loan Agreement and the other
Loan Documents to the extent such Person is a party thereto (including, without
limitation, the Borrower's payment obligations under Sections 2.2(a)(i) and 2.10
of the Loan Agreement (for clarification purposes, each quarterly installment of
the Loans shall be in an aggregate amount equal to 0.25% of $25,000,000, plus,
with respect to any subsequent such installment, the amount of any Interest
Advances), all as amended by this Amendment, and the liens and security
interests granted, created and perfected thereby, and acknowledges that (a) it
has no defenses, claims or set-offs to the enforcement of such liabilities,
obligations and agreements, (b) the Agent and the Lenders (and the Prior Agent
and the Prior Lenders) have fully performed all obligations to such Person which
such Persons may have had or have on and as of the date hereof and (c) other
than as specifically set forth herein, neither the Agent nor any of the Lenders
waives, diminishes or limits any term or condition contained in the Existing
Loan Agreement or any other Loan Document. The Agent and the Lenders' agreement
to the terms of this Amendment or any other amendment of the Existing Loan
Agreement or any other Loan Document shall not be deemed to establish or create
a custom or course of dealing among the Obligors, the Agent and the Lenders, or
any of them. This Amendment and the Other Amendment Documents contain the entire
agreement among the Obligors, the Agent and the Lenders contemplated by this
Amendment.
8. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute one and the same instrument.
9. Further Assurances. Each Obligor covenants and agrees that it will
at any time and from time to time do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
documents and instruments as reasonably may be required by the Agent in order to
effectuate fully the intent of this Amendment.
10. Severability. If any term or provision of this Amendment or the
application thereof to any party or circumstance shall be held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
the validity, legality and enforceability of the remaining terms and provisions
of this Amendment shall not in any way be affected or impaired thereby, and the
affected term or provision shall be modified to the minimum extent permitted by
law so as most fully to achieve the intention of this Amendment.
11. Captions. The captions in this Amendment are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this Amendment or any of the provisions hereof.
12. Governing Law. This Amendment shall be a contract made under and
governed by the laws of the State of New York, without regard to conflict of
laws principles.
[the remainder of this page intentionally left blank]
First Amendment to Loan Agreement and Other Loan Documents
Delivered at Chicago, Illinois as of the day and year first above
written.
BORROWER:
INFOCROSSING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Senior Vice President
GUARANTORS:
AMQUEST, INC., a Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
ETG, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
INFOCROSSING SERVICES, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
AMQUEST SERVICES, INC., a Georgia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
LENDERS:
CAPITALSOURCE FINANCE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: General Counsel
AGENT:
CAPITALSOURCE FINANCE LLC, as the Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: General Counsel
SCHEDULE 2.1
LENDERS' COMMITMENTS
================================== ================================= =========================== =========================
LENDER COMMITMENT OUTSTANDING AMOUNT OF PRO RATA SHARE
TERM LOAN AS OF EFFECTIVE
DATE
---------------------------------- --------------------------------- --------------------------- -------------------------
CapitalSource Finance LLC $25,000,000 $24,937,500 100%
---------------------------------- --------------------------------- --------------------------- -------------------------
TOTALS $25,000,000 $24,937,500 100%
================================== ================================= =========================== =========================
SCHEDULE I
Lenders' Addresses
CapitalSource Finance LLC
CAPITALSOURCE FINANCE LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Wire Instructions:
Bank: Bank of America, Baltimore, MD
Account: 003939396662
ABA: ▇▇▇▇▇▇▇▇▇
Account Name: CapitalSource Funding LLC - CFG
Reference: Infocrossing