EXHIBIT 10
FOURTH AMENDMENT TO
ACQUISITION LOAN AGREEMENT
This FOURTH AMENDMENT TO ACQUISITION LOAN AGREEMENT (this "Amendment"),
dated as of May 19, 2005, 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"), that
certain Third Amendment to Acquisition Loan Agreement dated as of December 29,
2004 (the "Third Amendment") and may further be amended, restated, supplemented
or otherwise modified from time to time, the "Loan Agreement").
B. Borrower wishes to repurchase shares of its Capital Stock for an
aggregate purchase price not to exceed $10,000,000 (the "Repurchase Plan") and
has requested Lenders' consent to such Repurchase Plan.
C. Borrower, Agent and the Lenders desire to amend and modify the Loan
Agreement 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:
SECTION 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.
SECTION 2. Amendment to Loan Agreement. The Loan Agreement hereby is amended as
follows: Section 6.7 of the Loan Agreement hereby is amended by deleting the
word "and" at the end of subsection (iv) where it appears therein, deleting the
period at the end of subsection (v) where it appears therein and substituting ";
and" therefor, and inserting the following new subsection (vi) after the such
Section 6.7:
"(vi) the Borrower may repurchase shares of its Capital Stock,
provided that (x) the aggregate purchase price for all shares of
Borrower's Capital Stock so repurchased shall not exceed ten million
dollars ($10,000,000) and (y) no Default or Event of Default shall have
occurred and be continuing or otherwise would exist or arise after
giving effect to any such repurchase."
SECTION 3. Amendment to First Amendment. Section 4(c) of the First Amendment, as
amended, is hereby amended by deleting clause (z) therein in its entirety and
substituting the following therefor:
"(z) from each other bank and financial institution with which any Loan
Party maintains a deposit account not subject to a Deposit Account
Control Agreement to the extent required pursuant to Section 6.17 of
the Loan Agreement, if any, in form and substance reasonably
satisfactory to Agent"
SECTION 4. 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) Borrower shall deliver to Agent bank statements for the
months of March, 2005 and April, 2005 for all deposit accounts that
are not required to be subject to a Deposit Account Control Agreement;
(b) Borrower shall deliver to Agent evidence that all investment
accounts maintained at Banc of America Securities (formerly Fleet
Securities) have been closed;
(c) no Default or Event of Default shall be in existence;
(d) 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;
(e) 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;
(f) the Borrower shall have executed and delivered that certain
letter agreement dated as of the date hereof between Borrower, Agent
and the Lenders; and
(g) 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.
SECTION 5. Loan Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, the Loan Agreement and other Loan Documents 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, 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, 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, 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, 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 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 to the "Loan Agreement" or "Credit
Agreement" shall mean and be a reference to the Loan Agreement as amended and
modified by this Amendment.
SECTION 6. 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 and the consummation of the Repurchase Plan are all
within its powers, have been duly authorized, and do not contravene (i)
its articles of incorporation, by-laws, or other organizational
documents, (ii) any applicable law, or (ii) any Convertible Notes
Indenture Document;
(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) after giving effect to the Repurchase Plan, it is not in
default under the Convertible Notes Indenture Documents and no default
or event of default has occurred and is continuing under any
Convertible Notes Indenture Document.
SECTION 7. 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 and the First 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 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) Each of Borrower and each Guarantor 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) EACH OF BORROWER AND EACH GUARANTOR 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]
Fourth Amendment to
Acquisition Loan Agreement
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/ NICHOLAS J. LETIZIA
Name: Nicholas J. Letizia
Title: Senior Vice President
CAPITALSOURCE FINANCE LLC,
as Agent and a Lender
By: /s/ STEVEN A. MUSELES
Name: Steven A. Museles
Title: Senior Vice President
ACKNOWLEDGED AND AGREED
TO AS OF THE DATE FIRST ABOVE
WRITTEN:
INFOCROSSING HEALTHCARE SERVICES, INC.;
INFOCROSSING SOUTHEAST, INC.;
ETG, INC.;
INFOCROSSING WEST, INC.;
INFOCROSSING SERVICES WEST, INC.;
INFOCROSSING SERVICES, INC.; and
INFOCROSSING SERVICES SOUTHEAST, INC.
By: /s/ NICHOLAS J. LETIZIA
Name: Nicholas J. Letizia
Title: Vice President
for each of the foregoing entities