EXHIBIT 10.4E
THIRD AMENDMENT TO ACQUISITION LOAN
AGREEMENT AND OTHER LOAN DOCUMENTS
This THIRD AMENDMENT TO ACQUISITION LOAN AGREEMENT AND OTHER LOAN
DOCUMENTS (this "Amendment"), dated as of December 29, 2004, is entered into by
and between CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, in
its capacity as agent (in such capacity, "Agent") for the Lenders under the Loan
Agreement referenced below, the Lenders party thereto, and INFOCROSSING, INC., a
Delaware corporation ("Borrower").
R E C I T A L S:
A. The Borrower, Agent and the Lenders have entered into that certain
Acquisition Loan Agreement dated as of July 29, 2004 (as the same has been
amended by that certain Amended and Restated Consent, Waiver and First Amendment
to Acquisition Loan Agreement dated as of October 6, 2004 (the "First
Amendment"), that certain Second Amendment to Acquisition Loan Agreement and
Other Loan Documents dated as of November 8, 2004 (the "Second Amendment") and
may further be amended, restated, supplemented or otherwise modified from time
to time, the "Loan Agreement").
B. Borrower, Agent and the Lenders desire to amend and modify the First
Amendment and the Second Amendment as herein set forth.
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 herein, including in the above
recitals, but not elsewhere defined herein shall have the respective meanings
ascribed to such terms in the Loan Agreement.
2. Amendments to First Amendment and the Second Amendment. The First
Amendment and the Second Amendment hereby are amended as follows:
(a) Section 4(c) of the First Amendment and Section 2.2(a) of
the Second Amendment hereby is amended by deleting the date "December
31, 2004" and substituting "January 31, 2005" therefor.
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) the representations and warranties contained herein and in all other
Loan Documents, as amended hereby, shall be true and correct in all
material respects as of the date hereof, except for such
representations and warranties limited by their terms to a specific
date;
(b) no Default or Event of Default shall be in existence;
(c) the Borrower shall have delivered to the Agent an executed original
copy of this Amendment and each other agreement, document or instrument
reasonably requested by the Agent in connection with this Amendment,
each in form and substance reasonably satisfactory to Agent and
Lenders;
(d) the Borrower shall have paid all fees, costs and expenses owed to
and/or incurred by the Agent and Lenders arising in connection with the
Loan Documents and/or this Amendment; and
(e) all proceedings taken in connection with the transactions contemplated
by this Amendment and all documentation and other legal matters
incident thereto shall be satisfactory to the Agent.
4. Loan Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Loan Agreement and other Loan Documents,
including the First Amendment and the Second Amendment, shall remain in full
force and effect and hereby are ratified and confirmed as so amended. Except as
expressly set forth herein, this Amendment shall not be deemed to be a waiver,
amendment or modification of any provisions of the Loan Agreement or any other
Loan Document, including the First Amendment and the Second Amendment, or any
right, power or remedy of Agent or Lenders, or constitute a waiver of any
provision of the Loan Agreement or any other Loan Document, including the First
Amendment and the Second Amendment, or any other document, instrument and/or
agreement executed or delivered in connection therewith or of any Default or
Event of Default under any of the foregoing, in each case whether arising before
or after the date hereof or as a result of performance hereunder or thereunder.
Except as set forth herein, Agent and Lenders reserve all rights, remedies,
powers, or privileges available under the Loan Agreement, the other Loan
Documents (including the First Amendment and the Second Amendment), at law or
otherwise. All references to the Loan Agreement shall be deemed to mean the Loan
Agreement as modified hereby. This Amendment shall not constitute a novation or
satisfaction and accord of the Loan Agreement and/or other Loan Documents
(including the First Amendment and the Second Amendment), but shall constitute
an amendment thereof. The parties hereto agree to be bound by the terms and
conditions of the Loan Agreement and the other Loan Documents (including the
First Amendment and the Second Amendment) as amended by this Amendment, as
though such terms and conditions were set forth herein. Each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
similar import shall mean and be a reference to the Loan Agreement as amended by
this Amendment, and each reference herein or in any other Loan Document
(including the First Amendment and the Second Amendment) to the "Loan Agreement"
or "Credit Agreement" shall mean and be a reference to the Loan Agreement as
amended and modified by this Amendment.
5. Representations. Borrower hereby represents and warrants to Agent
and Lenders as follows:
(a) it is duly incorporated, validly existing and in good
standing under the laws of Delaware;
(b) the execution, delivery and performance by it of this
Amendment and all other Loan Documents executed and/or delivered in
connection herewith are within its powers, have been duly authorized,
and do not contravene (i) its articles of incorporation, by-laws, or
other organizational documents, or (ii) any applicable law;
(c) no consent, license, permit, approval or authorization of,
or registration, filing or declaration with, any Governmental Authority
or other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment or any other
Loan Documents executed and/or delivered in connection herewith by or
against it;
(d) this Amendment and all other Loan Documents executed
and/or delivered in connection herewith have been duly executed and
delivered by it;
(e) this Amendment and all other Loan Documents executed
and/or delivered in connection herewith constitute its legal, valid and
binding obligation enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by general principles of
equity;
(f) after giving effect to this Amendment, it is not in
default under the Loan Documents and no Default or Event of Default
exists, has occurred and is continuing; and
(g) the representations and warranties contained in the Loan
Documents (including the First Amendment and the Second Amendment) as
amended hereby are true and correct in all material respects as of the
date hereof as if made on the date hereof, except for such
representations and warranties limited by their terms to a specific
date.
6. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts (including by facsimile), and by the different parties
hereto on the same or separate counterparts, each of which shall be
deemed to be an original instrument but all of which together shall
constitute one and the same agreement. Each party agrees that it will
be bound by its own facsimile signature and that it accepts the
facsimile signature of each other party. The descriptive headings of
the various sections of this Amendment are inserted for convenience of
reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof or thereof. Whenever the
context and construction so require, all words herein in the singular
number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter
and the neuter shall include the masculine and feminine.
(b) This Amendment may not be changed, amended, restated,
waived, supplemented, discharged, canceled, terminated or otherwise
modified orally or by any course of dealing or in any manner other than
as provided in the Loan Agreement. This Amendment shall be considered
part of the Loan Agreement, the First Amendment and the Second
Amendment, as applicable, and shall be a Loan Document for all purposes
under the Loan Agreement and the other Loan Documents.
(c) This Amendment, the Loan Agreement and the other Loan
Documents (including the First Amendment and the Second Amendment)
constitute the final, entire agreement and understanding between the
parties with respect to the subject matter hereof and thereof and may
not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties, and shall be binding upon and
inure to the benefit of the successors and assigns of the parties
hereto and thereto. There are no unwritten oral agreements between the
parties with respect to the subject matter hereof and thereof.
(d) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH
IN THE LOAN AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL
AND NOTICE PROVISIONS OF THE LOAN AGREEMENT.
(e) Borrower may not assign, delegate or transfer this
Amendment or any of its rights or obligations hereunder. No rights are
intended to be created under this Amendment for the benefit of any
third party donee, creditor or incidental beneficiary of Borrower or
any Guarantor. Nothing contained in this Amendment shall be construed
as a delegation to Agent or Lenders of Borrower's or any Guarantor's
duty of performance, including, without limitation, any duties under
any account or contract in which Agent has or Lenders have a security
interest or Lien. This Amendment shall be binding upon the Borrower and
its successors and assigns.
(f) Borrower shall pay all costs and expenses incurred by
Agent and Lenders or any of their affiliates, including, without
limitation, reasonable attorneys' fees and expenses, in connection with
entering into, negotiating, preparing, reviewing and executing this
Amendment and the documents, agreements and instruments contemplated
hereby and all related agreements, documents and instruments, and all
of the same shall be part of the Obligations. If Agent, any Lender or
any of their affiliates uses in-house counsel for any of the purposes
set forth above the Borrower expressly agrees that the Obligations
include reasonable charges for such work commensurate with the fees
that would otherwise be charged by outside legal counsel selected by
such Person in its sole discretion for the work performed.
(g) Borrower hereby (i) agrees that this Amendment shall not
limit or diminish its obligations under the Loan Documents, (ii)
reaffirms its obligations under each of the Loan Documents to which it
is a party, and (iii) agrees that each of such Loan Documents, as
amended hereby, remains in full force and effect and is hereby ratified
and confirmed.
(h) All representations and warranties made in this Amendment
shall survive the execution and delivery of this Amendment and no
investigation by Agent or Lenders shall affect such representations or
warranties or the right of Agent or Lenders to rely upon them.
(i) BORROWER ACKNOWLEDGES AND AGREES THAT (A) IT HAS NO
CLAIMS, COUNTERCLAIMS, OFFSETS, CREDITS OR DEFENSES TO THE LOAN
DOCUMENTS AND THE PERFORMANCE OF ITS OBLIGATIONS THEREUNDER, OR (B) IF
IT HAS ANY SUCH CLAIMS, COUNTERCLAIMS, OFFSETS, CREDITS OR DEFENSES TO
THE LOAN DOCUMENTS AND/OR ANY TRANSACTION RELATED TO THE LOAN DOCUMENTS
AND/OR THE OBLIGATIONS, THE SAME ARE HEREBY WAIVED, RELINQUISHED AND
RELEASED IN CONSIDERATION OF AGENT'S AND LENDERS' EXECUTION AND
DELIVERY OF THIS AMENDMENT.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
Third Amendment to Acquisition
Loan Agreement and Other Loan Documents
IN WITNESS WHEREOF, each of the parties has duly executed this
Amendment as of the day and year first written above.
INFOCROSSING, INC.,
a Delaware corporation, as Borrower
By: /s/ Zach Lonstein
-----------------
Name: Zach Lostein
Title Chairman and Chief Executive Officer
CAPITALSOURCE FINANCE LLC,
as Agent and a Lender
By: /s/ Joseph Turitz
-----------------
Name: Joseph Turitz
Title: General Counsel Corporate Finance
Group