EXHIBIT 10.3
SECURITIES PLEDGE AGREEMENT
THIS SECURITIES PLEDGE AGREEMENT (this "Pledge Agreement") is made and
entered into as of this 30th day of November, 2005 by INFOCROSSING, INC., a
Delaware corporation (the "Borrower" and a "Pledgor"), EACH OF THE UNDERSIGNED
SUBSIDIARIES OF THE BORROWER AND EACH OTHER PERSON WHO SHALL BECOME A PARTY
HERETO BY EXECUTION OF A PLEDGE JOINDER AGREEMENT (each a "Pledgor" and,
collectively with the Borrower, the "Pledgors") and BANK OF AMERICA, N.A., a
national banking association, as administrative agent (in such capacity, the
"Administrative Agent") for each of the Lenders now or hereafter party to the
Credit Agreement defined below, collectively with the Administrative Agent and
certain other Persons parties to Related Credit Arrangements as more
particularly described in Section 17 hereof, the "Secured Parties"). All
capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to the Borrower a
term loan facility and a revolving credit facility with a letter of credit
sublimit and a swing line facility pursuant to the Credit Agreement dated as of
November 30, 2005 among the Borrower, the Administrative Agent and the Lenders
(as from time to time amended, revised, modified, supplemented, or amended and
restated, the "Credit Agreement"); and
WHEREAS, each Domestic Subsidiary of the Borrower will materially
benefit from the Loans and other credit facilities made or to be made available
under the Credit Agreement, and in connection therewith and pursuant to the
terms of the Credit Agreement each Domestic Subsidiary is a party (as signatory
or by joinder) to a Guaranty pursuant to which it has guaranteed the full and
prompt payment and performance of the Obligations and is required to execute and
deliver this Pledge Agreement; and
WHEREAS, the Secured Parties are unwilling to make available or
maintain the credit facilities under the Credit Agreement unless the Pledgors
enter into this Pledge Agreement; and
WHEREAS, each of (i) the Borrower, as collateral security for the
payment and performance of the Obligations and the obligations and liabilities
of any Loan Party now existing or hereafter arising under Related Credit
Arrangements, and (ii) each other Pledgor, as collateral security for the
payment and performance of its Guarantor's Obligations (as defined in the
Guaranty to which it is a party), and the payment and performance of its
obligations and liabilities (whether now existing or hereafter arising)
hereunder or under any of the other Loan Documents to which it is now or
hereafter becomes a party (such obligations and liabilities of the Pledgors
described in clauses (i) and (ii) being referred to as "Secured Obligations"),
is willing to pledge and grant to the Administrative Agent for the benefit of
the Secured Parties a security interest in (i) 65% of the Voting Securities (or
if any Pledgor shall own less than 65% of such Voting Securities, then 100% of
the Voting Securities owned by such Pledgor) and 100% of the other Subsidiary
Securities of each of its Direct Foreign Subsidiaries, and (ii) all of the
Subsidiary Securities of all of its other Domestic Subsidiaries, in each case,
whether now existing or hereafter created or acquired (collectively, the
"Pledged Interests"), and certain related property, including without limitation
the Pledged Interests more particularly described on Schedule I hereto (such
Subsidiaries, together with all other Subsidiaries whose Subsidiary Securities
may be required to be subject to this Pledge Agreement from time to time, are
hereinafter referred to collectively as the "Pledged Subsidiaries"); and
WHEREAS, the Secured Parties are unwilling to enter into the Loan
Documents unless each Pledgor enters into this Pledge Agreement;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and to make or maintain the credit facilities provided for
therein available to or for the account of the Borrower, and in consideration of
the premises and the mutual covenants contained herein, the parties hereto agree
as follows:
1. PLEDGE OF PLEDGED INTERESTS; OTHER COLLATERAL.
(a) As collateral security for the payment and performance by
each Pledgor of its now or hereafter existing Secured
Obligations, each Pledgor hereby grants, pledges and
collaterally assigns to the Administrative Agent for the
benefit of the Secured Parties a first priority security
interest in all of the following items of property in which it
now has or may at any time hereafter acquire an interest or
the power to transfer rights therein, and wheresoever located:
(i) the Pledged Interests; and
(ii) all money, securities, security entitlements and
other investment property, dividends, rights, general
intangibles and other property at any time and from time to
time (x) declared or distributed in respect of or in exchange
for or on conversion of any Pledged Interest, or (y) by its or
their terms exchangeable or exercisable for or convertible
into any Pledged Interest; and
(iii) all other property of whatever character or
description, including money, securities, security
entitlements and other investment property, and general
intangibles hereafter delivered to the Administrative Agent in
substitution for or as an addition to any of the foregoing;
and
(iv) all securities accounts to which may at any time
be credited any or all of the foregoing or any proceeds
thereof and all certificates and instruments representing or
evidencing any of the foregoing or any proceeds thereof; and
(v) all proceeds of any of the foregoing.
All such Pledged Interests, certificates, instruments, cash,
securities, interests, dividends, rights and other property referred to
in clauses (i) through (v) of this Section 1 are herein collectively
referred to as the "Collateral."
(b) Subject to Section 10(a), each Pledgor agrees to deliver
all certificates, instruments or other documents representing any
Collateral to the Administrative Agent at such location as the
Administrative Agent shall from time to time designate by written
notice pursuant to Section 22 for its custody at all times until
termination of this Pledge Agreement, together with such instruments of
assignment and transfer as reasonably requested by the Administrative
Agent.
(c) Each Pledgor agrees to execute and deliver, or cause to be
executed and delivered by other Persons, at Pledgor's expense, all
share certificates, documents, instruments, agreements, financing
statements (and amendments thereto and continuations thereof),
assignments, control agreements, or other writings as the
Administrative Agent may reasonably request from time to time to carry
out the terms of this Pledge Agreement or to protect or enforce the
Administrative Agent's Lien and security interest in the Collateral
hereunder granted to the Administrative Agent for the benefit of the
Secured Parties and further agrees to do and cause to be done upon the
Administrative Agent's request, at Pledgor's expense, all things
determined by the Administrative Agent to be necessary or advisable to
perfect and keep in full force and effect the Lien in the Collateral
hereunder granted to the Administrative Agent for the benefit of the
Secured Parties, including the prompt payment of all out-of-pocket fees
and expenses incurred in connection with any filings made to perfect or
continue the Lien and security interest in the Collateral hereunder
granted in favor of the Administrative Agent for the benefit of the
Secured Parties.
(d) All filing fees, advances, charges, costs and expenses,
including reasonable Attorney Costs, incurred or paid by the
Administrative Agent or any Lender in exercising any right, power or
remedy conferred by this Pledge Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations secured
hereunder and shall be paid to the Administrative Agent for the benefit
of the Secured Parties by the Pledgor in respect of which the same was
incurred immediately upon demand therefor, and any amounts not so paid
on demand (in addition to other rights and remedies resulting from such
nonpayment) shall bear interest from the date of demand until paid in
full at the Default Rate.
(e) Each Pledgor agrees to register and cause to be registered
the interest of the Administrative Agent, for the benefit of the
Secured Parties, in the Collateral on its own books and records and the
registration books of each of the Pledged Subsidiaries.
2. STATUS OF PLEDGED INTERESTS. Each Pledgor hereby represents,
warrants and covenants to the Administrative Agent for the benefit of the
Secured Parties, with respect to itself and the Collateral as to which it has or
acquires any interest, that:
(a) All of the Pledged Interests are, as of the date of
execution of this Pledge Agreement or Pledge Joinder Agreement by each
Pledgor pledging such Pledged Interests (such date as applicable with
respect to each Pledgor, its "Applicable Date"), and shall at all times
thereafter be validly issued and outstanding, fully paid and
non-assessable and constitute (i) 65% of the issued and outstanding
Voting Securities (or if any Pledgor shall own less than 65% of such
Voting Securities, then 100% of the Voting Securities owned by such
Pledgor) and 100% of the other issued and outstanding Subsidiary
Securities of each Direct Foreign Subsidiary constituting a Pledged
Subsidiary and (ii) all of the issued and outstanding Subsidiary
Securities of all other Domestic Subsidiaries constituting Pledged
Subsidiaries, and are accurately described on Schedule I.
(b) The Pledgor is as at its Applicable Date and shall at all
times thereafter (subject to Dispositions permitted under the Credit
Agreement) be the sole registered and record and beneficial owner of
the Pledged Interests, free and clear of all Liens, charges, equities,
options, hypothecations, encumbrances and restrictions on pledge or
transfer, including transfer of voting rights (other than the pledge
hereunder and applicable restrictions pursuant to federal and state and
applicable foreign securities laws). Without limiting the foregoing,
the Pledged Interests are not and will not be subject to any voting
trust, shareholders agreement, right of first refusal, voting proxy,
power of attorney or other similar arrangement (other than the rights
hereunder in favor of the Administrative Agent).
(c) At no time shall any Pledged Interests (i) be held or
maintained in the form of a security entitlement or credited to any
securities account and (ii) which constitute a "security" (or as to
which the related Pledged Subsidiary has elected to have treated as a
"security") under Article 8 of the Uniform Commercial Code of the State
of New York or of any other jurisdiction whose laws may govern (the
"UCC") be maintained in the form of uncertificated securities. With
respect to Pledged Interests that are "securities" under the UCC, or as
to which the issuer has elected at any time to have such interests
treated as "securities" under the UCC, such Pledged Interests are, and
shall at all times be, represented by the share certificates listed on
Schedule I hereto, which share certificates, with stock powers duly
executed in blank by the Pledgor, have been delivered to the
Administrative Agent or are being delivered to the Administrative Agent
simultaneously herewith or, in the case of Additional Interests as
defined in Section 21, shall be delivered pursuant to Section 21. In
addition, with respect to all Pledged Interests, including Pledged
Interests that are not "securities" under the UCC and as to which the
applicable Pledged Subsidiary has not elected to have such interests
treated as "securities" under the UCC, the Pledgor has at its
Applicable Date delivered to the Administrative Agent (or has
previously delivered to the Administrative Agent or, in case of
Additional Interests shall deliver pursuant to Section 21) Uniform
Commercial Code financing statements (or appropriate amendments
thereto) duly authorized by the Pledgor and naming the Administrative
Agent for the benefit of the Secured Parties as "secured party," in
form, substance and number sufficient in the reasonable opinion of the
Administrative Agent to be filed in all UCC filing offices and in all
jurisdictions in which filing is necessary or advisable to perfect in
favor of the Administrative Agent for the benefit of the Secured
Parties the Lien on such Pledged Interests, together with all required
filing fees. Without limiting the foregoing provisions of this Section
2(c), with respect to any Pledged Interests issued by any Direct
Foreign Subsidiary, Pledgor shall deliver or cause to be delivered, (i)
in addition to or in substitution for all or any of the foregoing
items, as the Administrative Agent may elect, such other instruments,
certificates, agreements, notices, filings, and other documents, and
take or cause to be taken such other action, as the Administrative
Agent may determine to be necessary or advisable under the laws of the
jurisdiction of formation of such Direct Foreign Subsidiary, to grant,
perfect and protect as a first priority lien in such Collateral in
favor of the Administrative Agent for the benefit of the Secured
Parties, and (ii) an opinion of counsel acceptable in form and
substance to the Administrative Agent issued by a law firm acceptable
to the Administrative Agent licensed to practice law in such foreign
jurisdiction, addressing with respect to such Pledged Interests the
matters described in Section 4.01(a) of the Credit Agreement.
(d) It has full corporate power, legal right and lawful
authority to execute this Pledge Agreement (and any Pledge Joinder
Agreement applicable to it) and to pledge, assign and transfer its
Pledged Interests in the manner and form hereof.
(e) The pledge, assignment and delivery of its Pledged
Interests (along with undated stock powers executed in blank, financing
statements and other agreements referred to in Section 2(c) hereof) to
the Administrative Agent for the benefit of the Secured Parties
pursuant to this Pledge Agreement (or any Pledge Joinder Agreement)
creates or continues, as applicable, a valid and perfected first
priority security interest in such Pledged Interests in favor of the
Administrative Agent for the benefit of the Secured Parties, securing
the payment of the Secured Obligations, assuming, in the case of the
Pledged Interests which constitute certificated "securities" under the
UCC, continuous and uninterrupted possession by or on behalf of the
Administrative Agent. The Pledgor will at its own cost and expense
defend the Secured Parties' right, title and security interest in and
to the Collateral against the claims and demands of all persons
whomsoever.
(f) Except as otherwise expressly provided herein pursuant to
a Disposition permitted under the Credit Agreement, none of the Pledged
Interests (nor any interest therein or thereto) shall be sold,
transferred or assigned without the Administrative Agent's prior
written consent, which may be withheld for any reason.
(g) It shall at all times cause the Pledged Interests of such
Pledgor that constitute "securities" (or as to which the issuer elects
to have treated as "securities") under the UCC to be represented by the
certificates now and hereafter delivered to the Administrative Agent in
accordance with Sections 1, 2 and 21 hereof and that it shall cause
each of the Pledged Subsidiaries as to which it is the Pledgor not to
issue any Subsidiary Securities, or securities convertible into, or
exchangeable or exercisable for, Subsidiary Securities, at any time
during the term of this Pledge Agreement unless the Pledged Interests
of such Pledge Subsidiary are issued solely to either (y) such Pledgor
who shall immediately comply with Sections 2 and 21 hereof with respect
to such property or (z) the Borrower or another Guarantor who shall
immediately pledge such additional Subsidiary Securities to the
Administrative Agent for the benefit of the Secured Parties pursuant to
Section 21 or 23 hereof, as applicable, on substantially identical
terms as are contained herein and deliver or cause to be delivered the
appropriate documents described in Section 2(c) hereof to the
Administrative Agent and take such further actions as the
Administrative Agent may deem necessary in order to perfect a first
priority security interest in such Subsidiary Securities.
(h) The exact legal name and address, type of Person,
jurisdiction of formation, jurisdiction of formation identification
number (if any), and location of the chief executive office of such
Pledgor are (i) with respect to each Pledgor granting a Lien to the
Administrative Agent under a Security Instrument at the Closing Date,
as specified on Schedule 5.12 to the Credit Agreement, and (ii) with
respect to each other Pledgor, as specified on Schedule II attached
hereto. No Pledgor shall change its name, jurisdiction of formation
(whether by reincorporation, merger or otherwise), or the location of
its chief executive office, except upon giving not less than thirty
(30) days' prior written notice to the Administrative Agent and taking
or causing to be taken all such action at such Pledgor's expense as may
be reasonably requested by the Administrative Agent to perfect or
maintain the perfection of the Lien of the Administrative Agent in
Collateral.
3. PRESERVATION AND PROTECTION OF COLLATERAL.
(a) The Administrative Agent shall be under no duty or
liability with respect to the collection, protection or preservation of
the Collateral, or otherwise, beyond the use of reasonable care in the
custody and preservation thereof while in its possession.
(b) Each Pledgor agrees to pay when due all taxes, charges,
Liens and assessments against the Collateral in which it has an
interest, unless being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP applied on a basis
consistent with that used in preparing the Audited Financial Statements
and evidenced to the satisfaction of the Administrative Agent and
provided that all enforcement proceedings in the nature of levy or
foreclosure are effectively stayed. Upon the failure of any Pledgor to
so pay or contest such taxes, charges, Liens or assessments, or upon
the failure of any Pledgor to pay any amount pursuant to Section 1(c),
the Administrative Agent at its option may pay or contest any of them
(the Administrative Agent having the sole right to determine the
legality or validity and the amount necessary to discharge such taxes,
charges, Liens or assessments) but shall not have any obligation to
make any such payment or contest. All sums so disbursed by the
Administrative Agent, including reasonable Attorney Costs, court costs,
expenses and other charges related thereto, shall be payable on demand
by the applicable Pledgor to the Administrative Agent and shall be
additional Secured Obligations secured by the Collateral, and any
amounts not so paid on demand (in addition to other rights and remedies
resulting from such nonpayment) shall bear interest from the date of
demand until paid in full at the Default Rate.
(c) Each Pledgor hereby (i) irrevocably authorizes the
Administrative Agent to file (with, or to the extent permitted by
applicable law, without the signature of the Pledgor appearing thereon)
financing statements (including amendments thereto and continuations
and copies thereof) showing such Pledgor as "debtor" at such time or
times and in all filing offices as the Administrative Agent may from
time to time determine to be necessary or advisable to perfect or
protect the rights of the Administrative Agent and the Secured Parties
hereunder, or otherwise to give effect to the transactions herein
contemplated, and (ii) irrevocably ratifies and acknowledges all such
actions taken by or on behalf of the Administrative Agent prior to the
Applicable Date.
4. DEFAULT. Upon the occurrence and during the continuance of any Event
of Default, the Administrative Agent is given full power and authority, then or
at any time thereafter, to sell, assign, deliver or collect the whole or any
part of the Collateral, or any substitute therefor or any addition thereto, in
one or more sales, with or without any previous demands or demand of performance
or, to the extent permitted by law, notice or advertisement, in such order as
the Administrative Agent may elect; and any such sale may be made either at
public or private sale at the Administrative Agent's place of business or
elsewhere, either for cash or upon credit or for future delivery, at such price
or prices as the Administrative Agent may reasonably deem fair; and the
Administrative Agent or any other Secured Party may be the purchaser of any or
all Collateral so sold and hold the same thereafter in its own right free from
any claim of any Pledgor or right of redemption. Demands of performance,
advertisements and presence of property and sale and notice of sale are hereby
waived to the extent permissible by law. Any sale hereunder may be conducted by
an auctioneer or any officer or agent of the Administrative Agent. Each Pledgor
recognizes that the Administrative Agent may be unable to effect a public sale
of the Collateral by reason of certain prohibitions contained in the Securities
Act of 1933, as amended (the "Securities Act"), and applicable state law, and
may be otherwise delayed or adversely affected in effecting any sale by reason
of present or future restrictions thereon imposed by governmental authorities,
and that as a consequence of such prohibitions and restrictions the
Administrative Agent may be compelled (i) to resort to one or more private sales
to a restricted group of purchasers who will be obliged to agree, among other
things, to acquire the Collateral for their own account, for investment and not
with a view to the distribution or resale thereof, or (ii) to seek regulatory
approval of any proposed sale or sales, or (iii) to limit the amount of
Collateral sold to any Person or group. Each Pledgor agrees and acknowledges
that private sales so made may be at prices and upon terms less favorable to
such Pledgor than if such Collateral was sold either at public sales or at
private sales not subject to other regulatory restrictions, and that the
Administrative Agent has no obligation to delay the sale of any of the
Collateral for the period of time necessary to permit the Pledged Subsidiary to
register or otherwise qualify the Collateral, even if such Pledged Subsidiary
would agree to register or otherwise qualify such Collateral for public sale
under the Securities Act or applicable state law. Each Pledgor further agrees,
to the extent permitted by applicable law, that the use of private sales made
under the foregoing circumstances to dispose of the Collateral shall be deemed
to be dispositions in a commercially reasonable manner. Each Pledgor hereby
acknowledges that a ready market may not exist for the Pledged Interests if they
are not traded on a national securities exchange or quoted on an automated
quotation system and agrees and acknowledges that in such event the Pledged
Interests may be sold for an amount less than a pro rata share of the fair
market value of the Pledged Subsidiary's assets minus its liabilities. In
addition to the foregoing, the Secured Parties may exercise such other rights
and remedies as may be available under the Loan Documents, at law (including
without limitation the UCC) or in equity.
5. PROCEEDS OF SALE. The net cash proceeds resulting from the
collection, liquidation, sale, or other disposition of the Collateral shall be
applied first to the expenses (including all Attorneys' Costs) of retaking,
holding, storing, processing and preparing for sale, selling, collecting,
liquidating and the like, and then to the satisfaction of all Secured
Obligations in accordance with the terms of Section 8.03 of the Credit
Agreement. Each Grantor shall be liable to the Administrative Agent, for the
benefit of the Secured Parties, and shall pay to the Administrative Agent, for
the benefit of the Secured Parties, on demand any deficiency which may remain
after such sale, disposition, collection or liquidation of the Collateral.
6. PRESENTMENTS, DEMANDS AND NOTICES. The Administrative Agent shall
not be under any duty or obligation whatsoever to make or give any presentments,
demands for performances, notices of nonperformance, protests, notice of protest
or notice of dishonor in connection with any obligations or evidences of
indebtedness held thereby as collateral, or in connection with any obligations
or evidences of indebtedness which constitute in whole or in part the Secured
Obligations secured hereunder.
7. ATTORNEY-IN-FACT. Each Pledgor hereby appoints the Administrative
Agent as the Pledgor's attorney-in-fact for the purposes of carrying out the
provisions of this Pledge Agreement and taking any action and executing any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is irrevocable and coupled
with an interest; provided, that the Administrative Agent shall have and may
exercise rights under this power of attorney only upon the occurrence and during
the continuance of a Default or an Event of Default. Without limiting the
generality of the foregoing, upon the occurrence and during the continuance of a
Default or an Event of Default, the Administrative Agent shall have the right
and power to receive, endorse and collect all checks and other orders for the
payment of money made payable to any Pledgor representing any dividend, interest
payment, principal payment or other distribution payable or distributable in
respect to the Collateral or any part thereof and to give full discharge for the
same.
8. REINSTATEMENT. The granting of a security interest in the Collateral
and the other provisions hereof shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Secured Obligations
is rescinded or must otherwise be returned by any Secured Party or is repaid by
any Secured Party in whole or in part in good faith settlement of a pending or
threatened avoidance claim, whether upon the insolvency, bankruptcy or
reorganization of any Pledgor or any other Loan Party or otherwise, all as
though such payment had not been made. The provisions of this Section 8 shall
survive repayment of all of the Secured Obligations and the termination or
expiration of this Pledge Agreement in any manner, including but not limited to
termination upon occurrence of the Facility Termination Date. For purposes of
this Pledge Agreement, "Facility Termination Date" means the date as of which
all of the following shall have occurred: (a) the Borrower shall have
permanently terminated the credit facilities under the Loan Documents by final
payment in full of all Outstanding Amounts, together with all accrued and unpaid
interest and fees thereon, other than (i) the undrawn portion of Letters of
Credit and (ii) all letter of credit fees relating thereto accruing after such
date (which fees shall be payable solely for the account of the L/C Issuer and
shall be computed (based on interest rates and the Applicable Rate then in
effect) on such undrawn amounts to the respective expiry dates of the Letters of
Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative Agent
and the L/C Issuer shall have been made; (b) all Commitments shall have
terminated or expired; (c) the obligations and liabilities of the Borrower and
each other Loan Party under all Related Credit Arrangements shall have been
fully, finally and irrevocably paid and satisfied in full and the Related Credit
Arrangements shall have expired or been terminated, or other arrangements
satisfactory to the counterparties shall have been made with respect thereto;
and (d) the Borrower and each other Loan Party shall have fully, finally and
irrevocably paid and satisfied in full all other Obligations (except for
obligations consisting of continuing indemnities and other contingent
Obligations of the Borrower or any Loan Party that may be owing to the
Administrative Agent and each of its Related Parties or any Lender pursuant to
the Loan Documents and expressly survive termination of the Credit Agreement or
any other Loan Document).
9. WAIVER BY THE PLEDGORS. Each Pledgor waives to the extent permitted
by applicable law (a) any right to require any Secured Party or any other
obligee of the Secured Obligations to (i) proceed against any Person or entity,
including without limitation any Loan Party, (ii) proceed against or exhaust any
Collateral or other collateral for the Secured Obligations, or (iii) pursue any
other remedy in its power, (b) any defense arising by reason of any disability
or other defense of any other Person, or by reason of the cessation from any
cause whatsoever of the liability of any other Person or entity, (c) any right
of subrogation, (d) any right to enforce any remedy which any Secured Party or
any other obligee of the Secured Obligations now has or may hereafter have
against any other Person and any benefit of and any right to participate in any
collateral or security whatsoever now or hereafter held by the Administrative
Agent for the benefit of the Secured Parties. Each Pledgor authorizes each
Secured Party and each other obligee of the Secured Obligations without notice
(except notice required by applicable law) or demand and without affecting its
liability hereunder or under the Loan Documents from time to time to: (x) take
and hold security, other than the Collateral herein described, for the payment
of such Secured Obligations or any part thereof, and exchange, enforce, waive
and release the Collateral herein described or any part thereof or any such
other security; and (y) apply such Collateral or other security and direct the
order or manner of sale thereof as such Secured Party or obligee in its
discretion may determine.
The Administrative Agent may at any time deliver (without
representation, recourse or warranty) the Collateral or any part thereof to a
Pledgor and the receipt thereof by such Pledgor shall be a complete and full
acquittance for the Collateral so delivered, and the Administrative Agent shall
thereafter be discharged from any liability or responsibility therefor.
10. DIVIDENDS AND VOTING RIGHTS.
(a) All dividends and other distributions with respect to any
of the Pledged Interests shall be subject to the pledge hereunder,
provided, however, that cash dividends paid to a Pledgor as record
owner of the Pledged Interests, to the extent permitted by the Credit
Agreement to be declared and paid, may be retained by such Pledgor so
long as no Event of Default shall have occurred and be continuing, free
from any Liens hereunder.
(b) So long as no Event of Default shall have occurred and be
continuing, the registration of the Collateral in the name of a Pledgor
as record and beneficial owner shall not be changed and such Pledgor
shall be entitled to exercise all voting and other rights and powers
pertaining to the Collateral for all purposes not inconsistent with the
terms of the Loan Documents.
(c) Upon the occurrence and during the continuance of any
Event of Default, all rights of the Pledgors to receive and retain cash
dividends and other distributions upon the Collateral pursuant to
subsection (a) above shall cease and shall thereupon be vested in the
Administrative Agent for the benefit of the Secured Parties, and each
Pledgor shall promptly deliver, or shall cause to be promptly
delivered, all such cash dividends and other distributions with respect
to the Pledged Interests to the Administrative Agent (together, if the
Administrative Agent shall request, with the documents described in
Sections 1(c) and 2(c) hereof or other negotiable documents or
instruments so distributed) to be held by it hereunder or, at the
option of the Administrative Agent, to be applied to the Secured
Obligations. Pending delivery to the Administrative Agent of such
property, each Pledgor shall keep such property segregated from its
other property and shall be deemed to hold the same in trust for the
benefit of the Secured Parties.
(d) Upon the occurrence and during the continuance of any
Event of Default, at the option of the Administrative Agent, all rights
of each of the Pledgors to exercise the voting or consensual rights and
powers which it is authorized to exercise pursuant to subsection (b)
above shall cease and the Administrative Agent may thereupon (but shall
not be obligated to), at its request, cause such Collateral to be
registered in the name of the Administrative Agent or its nominee or
agent for the benefit of the Secured Parties and/or upon notice from
the Administrative Agent to the Borrower, exercise such voting or
consensual rights and powers as appertain to ownership of such
Collateral, and to that end each Pledgor hereby appoints the
Administrative Agent as its proxy, with full power of substitution, to
vote and exercise all other rights as a shareholder with respect to
such Pledged Interests hereunder upon the occurrence and during the
continuance of any Event of Default, which proxy is coupled with an
interest and is irrevocable until the Facility Termination Date, and
each Pledgor hereby agrees to provide such further proxies as the
Administrative Agent may reasonably request; provided, however, that
the Administrative Agent in its discretion may from time to time
refrain from exercising, and shall not be obligated to exercise, any
such voting or consensual rights or such proxy.
11. CONTINUED POWERS. Until the Facility Termination Date shall have
occurred, the power of sale and other rights, powers and remedies granted to the
Administrative Agent for the benefit of the Secured Parties hereunder shall
continue to exist and may be exercised by the Administrative Agent at any time
and from time to time irrespective of the fact that any of the Secured
Obligations or any part thereof may have become barred by any statute of
limitations or that any part of the liability of any Pledgor may have ceased.
12. OTHER RIGHTS. The rights, powers and remedies given to the
Administrative Agent for the benefit of the Secured Parties by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to the
Administrative Agent or any Secured Party under any Related Agreement or by
virtue of any statute or rule of law. Any forbearance or failure or delay by the
Administrative Agent in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single or
partial exercise of any right, power or remedy hereunder shall not preclude the
further exercise thereof; and every right, power and remedy of the Secured
Parties shall continue in full force and effect until such right, power or
remedy is specifically waived in accordance with the terms of the Credit
Agreement.
13. ANTI-MARSHALING PROVISIONS. The right is hereby given by each
Pledgor to the Administrative Agent, for the benefit of the Secured Parties, to
make releases (whether in whole or in part) of all or any part of the Collateral
agreeable to the Administrative Agent without notice to, or the consent,
approval or agreement of other parties and interests, including junior lienors,
and each Grantor acknowledges that any such releases shall not impair in any
manner the validity of or priority of the Liens and security interests in the
remaining Collateral conferred hereunder, nor release any Pledgor from liability
for the Secured Obligations. Notwithstanding the existence of any other security
interest in the Collateral held by the Administrative Agent, for the benefit of
the Secured Parties, the Administrative Agent shall have the right to determine
the order in which any or all of the Collateral shall be subjected to the
remedies provided in this Pledge Agreement. Each Pledgor hereby waives any and
all right to require the marshaling of assets in connection with the exercise of
any of the remedies permitted by applicable law or provided herein or in any
Related Agreement.
14. ENTIRE AGREEMENT. This Pledge Agreement and each Pledge Joinder
Agreement, together with the Credit Agreement and other Loan Documents,
constitutes and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all prior
negotiations, agreements and understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof and of the Pledge Joinder Agreements control and supersede
any course of performance or usage of the trade inconsistent with any of the
terms hereof and thereof. Neither this Pledge Agreement nor any Pledge Joinder
Agreement nor any portion or provision hereof or thereof may be changed,
altered, modified, supplemented, discharged, canceled, terminated, or amended
orally or in any manner other than as provided in the Credit Agreement.
15. FURTHER ASSURANCES. Each Pledgor agrees at its own expense to do
such further acts and things, and to execute and deliver, and cause to be
executed and delivered as may be necessary or advisable to give effect thereto,
such additional conveyances, assignments, financing statements, control
agreements, documents, certificates, stock powers, agreements and instruments,
as the Administrative Agent may at any time reasonably request in connection
with the administration or enforcement of this Pledge Agreement or any Pledge
Joinder Agreement or related to the Collateral or any part thereof or in order
better to assure and confirm unto the Administrative Agent its rights, powers
and remedies for the benefit of the Secured Parties hereunder or thereunder.
Each Pledgor hereby consents and agrees that the Pledged Subsidiaries and all
other Persons, shall be entitled to accept the provisions hereof and of the
Pledge Joinder Agreements as conclusive evidence of the right of the
Administrative Agent, on behalf of the Secured Parties, to exercise its rights,
privileges, and remedies hereunder and thereunder with respect to the
Collateral, notwithstanding any other notice or direction to the contrary
heretofore or hereafter given by any Pledgor or any other Person to any of such
Pledged Subsidiaries or other Persons.
16. BINDING AGREEMENT; ASSIGNMENT. This Pledge Agreement and each
Pledge Joinder Agreement, and the terms, covenants and conditions hereof and
thereof, shall be binding upon and inure to the benefit of the parties hereto,
and to their respective successors and assigns, except that no Pledgor shall be
permitted to assign this Pledge Agreement, any Pledge Joinder Agreement or any
interest herein or therein or in the Collateral, or any part thereof or interest
therein, or otherwise pledge, encumber or grant any option with respect to the
Collateral, or any part thereof, or any cash or property held by the
Administrative Agent as Collateral under this Pledge Agreement. Without limiting
the generality of the foregoing sentence of this Section 16, any Lender may
assign to one or more Persons, or grant to one or more Persons participations in
or to, all or any part of its rights and obligations under the Credit Agreement
(to the extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof (concerning the
Administrative Agent) and Section 10.06 thereof (concerning assignments and
participations). All references herein to the Administrative Agent and to the
Secured Parties shall include any successor thereof or permitted assignee, and
any other obligees from time to time of the Secured Obligations.
17. RELATED CREDIT ARRANGEMENTS. All obligations of each Pledgor under
or in respect of Related Credit Arrangements (which are not prohibited under the
terms of the Credit Agreement) to which any Lender or any Affiliate of any
Lender is a party, shall be deemed to be Secured Obligations secured hereby, and
each Lender or Affiliate of a Lender party to any such Related Credit
Arrangement shall be deemed to be a Secured Party hereunder with respect to such
Secured Obligations; provided, however, that such obligations shall cease to be
Secured Obligations at such time, prior to the Facility Termination Date, as
such Person (or Affiliate of such Person) shall cease to be a "Lender" under the
Credit Agreement.
No Person who obtains the benefit of any Lien by virtue of the
provisions of this Section shall have any right to notice of any action or to
consent to, direct or object to any action hereunder or under any other Loan
Document or otherwise in respect of the Collateral (including the release or
impairment of any Collateral) other than in its capacity as a Lender and only to
the extent expressly provided in the Loan Documents. Each Secured Party not a
party to the Credit Agreement who obtains the benefit of this Pledge Agreement
by virtue of the provisions of this Section shall be deemed to have acknowledged
and accepted the appointment of the Administrative Agent pursuant to the terms
of the Credit Agreement, and that with respect to the actions and omissions of
the Administrative Agent hereunder or otherwise relating hereto that do or may
affect such Secured Party, the Administrative Agent and each of its Related
Parties shall be entitled to all the rights, benefits and immunities conferred
under Article IX of the Credit Agreement.
18. SEVERABILITY. The provisions of this Pledge Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Pledge Agreement shall be construed as if such invalid or unenforceable
provision had never been contained herein.
19. COUNTERPARTS. This Pledge Agreement may be executed in any number
of counterparts each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Pledge Agreement
to produce or account for more than one such counterpart executed by the Pledgor
against whom enforcement is sought. Without limiting the foregoing provisions of
this Section 19, the provisions of Section 10.10 of the Credit Agreement shall
be applicable to this Pledge Agreement.
20. TERMINATION. Subject to the provisions of Section 8, this Pledge
Agreement and each Pledge Joinder Agreement, and all obligations of the Pledgors
hereunder (excluding those obligations and liabilities that expressly survive
such termination) shall terminate without delivery of any instrument or
performance of any act by any party on the Facility Termination Date. Upon such
termination of this Pledge Agreement, the Administrative Agent shall, at the
sole expense of the Pledgors, promptly deliver to the Pledgors the certificates
evidencing its shares of Pledged Interests (and any other property received as a
dividend or distribution or otherwise in respect of such Pledged Interests to
the extent then held by the Administrative Agent as additional Collateral
hereunder), together with any cash then constituting the Collateral not then
sold or otherwise disposed of in accordance with the provisions hereof, and take
such further actions at the request of the Pledgors as may be necessary to
effect the same.
21. ADDITIONAL INTERESTS. If any Pledgor shall at any time acquire or
hold any additional Pledged Interests, including any Pledged Interests issued by
any Subsidiary not listed on Schedule I hereto which are required to be subject
to a Lien pursuant to a Pledge Agreement by the terms hereof or of any provision
of the Credit Agreement (any such shares being referred to herein as the
"Additional Interests"), such Pledgor shall deliver to the Administrative Agent
for the benefit of the Secured Parties (i) a Pledge Agreement Supplement in the
form of Exhibit A hereto with respect to such Additional Interests duly
completed and executed by such Pledgor and (iii) any other document required in
connection with such Additional Interests as described in Section 2(c). Each
Pledgor shall comply with the requirements of this Section 21 concurrently with
the acquisition of any such Additional Interests or, in the case of Additional
Interests to which Section 6.12 of the Credit Agreement applies, within the time
period specified in such Section or elsewhere in the Credit Agreement with
respect to such Additional Interests; provided, however, that the failure to
comply with the provisions of this Section 21 shall not impair the Lien on
Additional Interests conferred hereunder.
22. NOTICES. Any notice required or permitted hereunder shall be given
(a) with respect to the Borrower, at the address of the Borrower indicated in
Schedule 10.02 of the Credit Agreement, (b) with respect to each Subsidiary
which is a Pledgor hereunder, at the address then in effect for the giving of
notices to such Subsidiary under the Guaranty to which it is a party, and (c)
with respect to the Administrative Agent or a Lender, at the Administrative
Agent's address indicated in Schedule 10.02 of the Credit Agreement. All such
addresses may be modified, and all such notices shall be given and shall be
effective, as provided in Section 10.02 of the Credit Agreement for the giving
and effectiveness of notices and modifications of addresses thereunder.
23. JOINDER. Each Person who shall at any time execute and deliver to
the Administrative Agent a Pledge Joinder Agreement substantially in the form
attached as Exhibit B hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Pledgor and
shall have thereupon pursuant to Section 1 hereof granted a security interest in
and collaterally assigned and pledged to the Administrative Agent for the
benefit of the Secured Parties all Pledged Interests which it has at its
Applicable Date or thereafter acquires any interest or the power to transfer,
and all references herein and in the other Loan Documents to the Pledgors or to
the parties to this Pledge Agreement shall be deemed to include such Person as a
Pledgor hereunder. Each Pledge Joinder Agreement shall be accompanied by the
Supplemental Schedules referred to therein, appropriately completed with
information relating to the Pledgor executing such Pledge Joinder Agreement and
its property. Each of the applicable Schedules attached hereto shall be deemed
amended and supplemented without further action by such information reflected on
the Supplemental Schedules.
24. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this
Pledge Agreement and each Pledge Joinder Agreement and are hereby incorporated
by reference. All representations and warranties contained herein shall survive
the delivery of documents and any Credit Extensions referred to herein or
secured hereby.
25. GOVERNING LAW; WAIVERS.
(A) THIS PLEDGE AGREEMENT AND EACH PLEDGE JOINDER AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(B) EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS PLEDGE AGREEMENT OR ANY PLEDGE JOINDER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF
THIS PLEDGE AGREEMENT OR A PLEDGE JOINDER AGREEMENT, EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) EACH PLEDGOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PLEDGOR
PROVIDED IN SECTION 22 OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF
ANY PLACE WHERE ANY PLEDGOR OR ANY OF SUCH PLEDGOR'S PROPERTY OR ASSETS
MAY BE FOUND OR LOCATED.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS PLEDGE AGREEMENT OR ANY
PLEDGE JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY WAIVES,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY
HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) EACH PLEDGOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
IN WITNESS WHEREOF, the parties have duly executed this Pledge
Agreement on the day and year first written above.
PLEDGORS:
INFOCROSSING, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
INFOCROSSING SOUTHEAST, INC.
INFOCROSSING WEST, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President