Exhibit 10.1
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT AND WAIVER
This FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT AND WAIVER (this "First
Amendment") is dated as of August 1, 2000 ("First Amendment Date") and entered
into by and between iGate Capital Corporation, formerly known as Mastech
Corporation, a Pennsylvania corporation (the "Company"), and GE Capital Equity
Investments, Inc., a Delaware corporation ("GE Capital"), and amends the Note
Purchase Agreement, dated as of July 22, 1999, by and between the Company and GE
Capital (the "Original Note Purchase Agreement").
WITNESSETH
WHEREAS, following an internal reorganization of the Company that was
announced in March 2000, there have occurred certain Events of Default under the
Original Note Purchase Agreement;
WHEREAS, the Company has requested certain amendments to the terms of the
Original Note Purchase Agreement and certain waivers of those Events of Default
specified herein;
WHEREAS, GE Capital has agreed to make such amendments and waivers upon the
terms and conditions set forth herein; and
WHEREAS, concurrently with the execution of this First Amendment, the
Company is entering into (i) a Credit Agreement dated as of August 1, 2000 with
certain financial institutions party thereto, as lenders, and PNC Bank, National
Association, as Agent and as Swing Loan Lender and Issuing Bank, and (ii)
certain related ancillary documents thereto, including, without limitation,
security agreements, a patent, trademark and copyright security agreement,
subsidiary guaranty agreements and pledge agreements (the documents in (i) and
(ii), collectively, the "New Credit Agreement");
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
with the intent to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO ORIGINAL NOTE PURCHASE AGREEMENT
Section 1.1 Amendments to Section 1 of the Original Note Purchase
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Agreement.
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(a) The following defined terms and the definitions therefor amend and
restate the following terms defined in Section 1 of the Original Note Purchase
Agreement:
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States Government or any agency or
instrumentality thereof, (b) time deposits, certificates of deposit and
eurodollar time deposits, bankers' acceptances and overnight bank deposits, in
each case with any Lender or with any domestic commercial bank having capital
and surplus in excess of $500,000,000 (c) notes and bonds issued by domestic
corporations having a rating of at least A-1 by S&P or P-1/VMG-1 by ▇▇▇▇▇'▇, if
short term, or double "A" or higher by S&P and ▇▇▇▇▇'▇, if long term, (d) tax-
exempt money market securities, (e) notes and bonds issued by state and
municipal governments, and (f) money market mutual funds; provided however, that
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(x) at least one-third of the value of the Cash Equivalents shall have a maximum
weighted average to maturity of not more than six (6) months and the remaining
value of the Cash Equivalents shall have a maximum weighted average to maturity
of not more than eighteen (18) months and (y) the Cash Equivalents which are of
a type customarily rated by S&P and ▇▇▇▇▇'▇, must have a rating of at least A-1
by S&P or P-1/VMG-1 by ▇▇▇▇▇'▇, if short term, or double "A" or higher by S&P
and ▇▇▇▇▇'▇, if long term.
"Credit Agreement" shall mean the Credit Agreement dated as of August
1, 2000, among the Company, as borrower, the financial institutions party
thereto, as lenders, and PNC Bank, National Association, as Agent and as Swing
Loan Lender and Issuing Bank, and the related ancillary documents thereto,
including, without limitation, the security agreements, the patent, trademark
and copyright security agreements, the subsidiary guaranty agreements and the
pledge agreements.
"Indebtedness" shall mean as to any Person at any time, any and all
indebtedness, obligations or liabilities (whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent or joint
and several) of such Person for or in respect of: (a) borrowed money (including,
without limitation, reimbursement and all other obligations with respect to
surety bonds, letters of credit and bankers' acceptances, whether or not
matured, but not including obligation trade payables and accrued expenses in the
ordinary course of business which are not represented by a promissory note or
other evidence of indebtedness), (b) amounts raised under or liabilities in
respect of any note purchase or acceptance credit facility, (c) reimbursement
obligations (contingent or otherwise) under any letter of credit, forward
exchange agreement, currency swap agreement, hedging contracts, Interest Rate
Hedge Agreement or other interest rate management device, raw materials
management device, (d) any other transaction (including forward sale or purchase
agreements, capitalized leases and conditional sales agreements) having the
commercial effect of a borrowing of money entered into by such Person to finance
its operations or capital requirements (but not including trade payables and
accrued expenses incurred in the ordinary course of business which are not
represented by a promissory note or other evidence of indebtedness), (e) any
obligation or liability as a general partner in any general or limited
partnership, or (f) any Guaranty of any of the foregoing.
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"Note" shall mean the Amended and Restated Convertible Promissory Note
of Company in the principal amount of $20,000,000 to be issued to Purchaser in
connection with the First Amendment amending and restating the convertible
promissory note dated July 22, 1999 issued to Purchaser by Company in connection
with the Original Note Purchase Agreement.
"Performance Revenue Targets" shall mean the following Performance
Revenue targets:
Year Ended Target
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June 30, 2000 $23,200,000
June 30, 2001 $33,600,000
June 30, 2002 $40,800,000
Cumulative Three-Year Target $97,600,000
"Subsidiary" of any Person at any time shall mean (a) any corporation
or trust of which 51% or more (by number of shares or number of votes) of the
outstanding capital stock or shares of beneficial interest normally entitled to
vote for the election of one or more directors or trustees (regardless of any
contingency which does or may suspend or dilute the voting rights) is at such
time owned directly or indirectly by such Person or one or more of such Person's
Subsidiaries, (b) any partnership of which 51% or more of the partnership
interests is at the time directly or indirectly owned by such Person or one or
more of such Person's Subsidiaries or (c) any limited liability company of which
such Person is a member or of which 51% or more of the limited liability company
interests is at the time directly or indirectly owned by such Person or one or
more of such Person's Subsidiaries.
"Target Percentage Achieved" shall mean that percentage obtained by
dividing (i) the cumulative Performance Revenues achieved for the period
commencing July 1, 1999 through the relevant date, by (ii) $97,600,000.
"Target Percentage Shortfall" shall mean that percentage which is
obtained by dividing (i) the difference of $97,600,000 less the cumulative
Performance Revenues achieved for the period commencing July 1, 1999 through
June 30, 2002, by (ii) $97,600,000.
(b) The following defined terms and the definitions therefor are hereby added
to Section 1 of the Original Note Purchase Agreement and inserted in
correct alphabetical order:
"Consolidated Tangible Net Worth" shall mean shareholders' equity
minus intangible assets of any Person determined on a consolidated basis in
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accordance with GAAP.
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"Interest Rate Hedge Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate insurance or any other agreement or arrangement designed to provide
protection against fluctuations in interest rates.
"Leverage Ratio" shall mean the ratio of (a) the consolidated
Indebtedness of Company and its Subsidiaries, to (b) the sum of (i) the
Consolidated Tangible Net Worth of Company and its Subsidiaries and (ii) the
consolidated Indebtedness of Company and its Subsidiaries, all calculated in
accordance with GAAP.
"Staffing Divestiture" shall mean the disposition, approved by the
Board of Directors of Company of the following entities: Mastech Quantum
Information Resources Ltd.; Goldstar Computer Systems, Inc.; Silverside Computer
Systems, Inc.; Quantum Group, Inc.; Quantum Information Resources, Inc.; Mastech
Asia Pacific Pty, Ltd.; Mastech Asia Pacific (NT) Pty, Ltd; MC Computer Services
Pty, Ltd.; Direct Resources Scotland Ltd; Chen & ▇▇▇▇▇▇▇▇, Inc.; Mastech
Application Services, Inc.; and "Staffing" Division of Emplifi, Inc.; provided,
however, that, other than with respect to the business of Mastech Quantum
Information Resources Ltd. in Canada, the Staffing Divestiture shall not include
any entity that provides IT Services to the GE Equity Companies.
(c) The following defined terms and the definitions therefor are hereby
deleted from the Section 1 of the Original Note Purchase Agreement:
"Consolidated Cash" shall mean Company's and its Subsidiaries cash
consolidated in accordance with GAAP.
"Consolidated Cash Equivalents" shall mean Company's and its
Subsidiaries' Cash Equivalents consolidated in accordance with GAAP.
"Consolidated Interest Expense" shall mean any Person's interest
expense, consolidated in accordance with GAAP.
"Consolidated Net Worth" shall mean stockholders' equity of any
Person consolidated in accordance with GAAP.
"Consolidated Receivables" shall mean Company's and its Subsidiaries'
receivables consolidated in accordance with GAAP.
"Consolidated Senior Indebtedness" shall mean Indebtedness of Company
and its Subsidiaries consolidated in accordance with GAAP, which Indebtedness by
its terms is not subordinated to the payment in full of the Note in a manner in
form and substance satisfactory to Purchaser.
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"Consolidated Senior Indebtedness to EBITDA Ratio" shall mean, as of
any date of determination, the ratio of the Company's Consolidated Senior
Indebtedness as of the end of the Company's most recently completed Fiscal
Quarter to Company's EBITDA for Company's four most recently completed Fiscal
Quarters treated as a single accounting period.
"EBIT" shall mean the consolidated operating income (before
extraordinary items, interest, taxes) of such Person and its consolidated
Subsidiaries determined in accordance with GAAP.
"EBITDA" shall mean the consolidated operating income (before
extraordinary items, interest, taxes, depreciation and amortization) of such
Person and its consolidated Subsidiaries determined in accordance with GAAP.
Section 1.2 Amendment to Section 5.2(d) of the Original Note Purchase
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Agreement. Section 5.2(d) of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
(d) Disposition of Assets or Subsidiaries. The Company shall comply with
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the covenants of the Credit Agreement relating to dispositions of assets or
subsidiaries. Excluding the payment of cash as consideration for assets
purchased by, or services rendered to, Company or any Subsidiary, subject to
paragraph (c) above, neither Company nor any of its Subsidiaries shall sell,
convey, assign, lease, or otherwise transfer or dispose of, voluntarily or
involuntarily, any of its properties or assets, tangible or intangible
(including but not limited to sale, assignment, discount or other disposition or
Receivables, contract rights, chattel paper, equipment or general intangibles
with or without recourse or of capital stock, shares or beneficial interests or
partnership interests in Subsidiaries) (each, a "Disposition"), if such
Disposition involves assets in excess of $50,000,000 other than (i) the Staffing
Divestiture, or (ii) the granting of Permitted Liens pursuant to the Credit
Agreement; provided, however, the exercise of rights with respect to the such
Permitted Liens (including, without limitation, foreclosure) against the assets
of the Company shall constitute an Event of Default under this Section 5.2(d).
Section 1.3 Amendment to Section 2.3 of the Original Note Purchase
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Agreement. Section 2.3 of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
Optional Prepayment. At any time and from time to time, following the
-------------------
third anniversary of the Closing Date, if the Performance Revenues do not equal
or exceed $97,600,000 at June 30, 2002, Company shall have the right, without
premium or penalty, and on thirty (30) days' prior written notice to Purchaser,
to voluntarily prepay at a price equal to 100% of the face amount thereof, that
portion (in multiples of not less than $500,000 or the amount outstanding on the
Note) of the outstanding principal amount of the Note which equals the Target
Percentage Shortfall. Each prepayment shall be accompanied by the payment of
accrued and unpaid interest on the amount being prepaid, through the date of
prepayment. Company shall not have any other right to prepay the Note.
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Section 1.4 Amendment to Section 5.2(i) of the Original Note Purchase
---------------------------------------------------------
Agreement. Section 5.2(i) of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
(i) Financial Covenants.
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(a) Minimum Consolidated Tangible Net Worth. Company shall not
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at any time permit its Consolidated Tangible Net Worth of Company and
its Subsidiaries, measured as of the last day of each Fiscal Quarter,
to be less than an amount equal to the sum of $100,000,000.
(b) Minimum Cash and Cash Equivalents. Company shall not permit
---------------------------------
the sum of the cash and Cash Equivalents of Company and its
Subsidiaries to be less than $30,000,000 at any time.
(c) Maximum Leverage. Company shall not at any time permit the
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Leverage Ratio, measured as of the last day of each Fiscal Quarter, to
exceed 0.5:1.0.
Section 1.5 Amendment to Section 8.1(f) of the Original Note Purchase
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Agreement. Section 8.1(f) of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
(f) Assets of Company or any of its Subsidiaries with a value of more
than $500,000 shall be attached, seized, levied upon or subjected to a writ
or distress warrant, or come within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors of Company or
any of its Subsidiaries and shall remain unstayed or undismissed for sixty
(60) consecutive days; or Company or any of its Subsidiaries shall have
concealed, removed or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors or any of
them or made or suffered a transfer of any of its property or the incurring
of an obligation which may be fraudulent under any bankruptcy, fraudulent
conveyance or other similar law.
Section 1.6 Amendment to the first paragraph of Section 7.1 of the
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Original Note Purchase Agreement. The first paragraph of Section 7.1 of the
--------------------------------
Original Note Purchase Agreement is hereby amended and restated in its entirety
to read as follows:
Subject to the provisions for adjustment hereinafter set forth, the
outstanding principal amount of the Note shall be convertible, in whole or in
part, at any time and from time to time, at the option of the holder thereof,
under the circumstances set forth in the following sentence (a "Conversion"),
into a number of fully paid and nonassessable shares of Common Stock equal to
the quotient obtained by dividing (A) the principal amount of the Note to be
converted by (B) the Conversion Price (as hereinafter defined). Purchaser may
elect to cause a Conversion of the Note on or after the occurrence of any
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or all of the following events or circumstances: an Extraordinary Default, an
Event of Default, or the third anniversary of the Closing Date. The Conversion
Price shall initially be $14.42 per share and shall be subject to further
adjustments from time to time pursuant to Section 7.1(e) below. If an
Extraordinary Default shall have occurred prior to the third anniversary of the
Closing Date, that portion of the Note which equals the Extraordinary Default
Target Percentage Achieved shall, at the election of the Purchaser, be
convertible into Common Stock; provided, however, that if the Extraordinary
Default Target Percentage Achieved equals 95% or greater, 100% of the Note shall
be convertible into Common Stock. On and after the occurrence of (i) an Event of
Default (other than a Payment Default) or (ii) the third anniversary of the
Closing Date, that portion of the Note which equals the Target Percentage
Achieved shall, at the election of Purchaser, be convertible into Common Stock.
Section 1.7 Amendment to Section 9.2(a) of the Original Note Purchase
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Agreement. Section 9.2(a) of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
Company agrees to make, and to use its reasonable best efforts to assist
Purchaser in making, appropriate filings of a Notification and Report Form
pursuant to the HSR Act with respect to the transactions contemplated hereby as
promptly as practicable and in any event within 30 days of the written request
of Purchaser, and to supply as promptly as practicable any additional
information and documentary material that may be requested by Purchaser in
connection with the HSR Act and to take all other actions necessary to cause the
expiration or termination of the applicable waiting periods under the HSR Act as
soon as is practicable. Purchaser shall pay any filing fee required pursuant to
the HSR Act in connection with the transactions contemplated by the Loan
Documents.
Section 1.8 Amendment to Section 9.11 of the Original Note Purchase
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Agreement. Section 9.11 of the Original Note Purchase Agreement is hereby
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amended and restated in its entirety to read as follows:
Notices. Except as otherwise provided herein, whenever it is provided
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herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by
another, or whenever any of the parties desires to give or serve upon another
any such communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt acknowledged or by
registered or certified mail, return receipt requested, postage prepaid, or by
telecopy and confirmed by telecopy answerback addressed as follows:
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If to Company:
iGate Capital Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
One Oxford Centre
301 Grant Street, 32ndFloor
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: GE Equity - Technology and Communications Group
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: GE Equity Group Legal Counsel
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
and
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed
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by telecopy answerback, or three (3) Business Days after the same shall have
been deposited with the United States mail. Failure or delay in delivering
copies of any notice, demand, request, consent, approval, declaration or other
communication to the Persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.
ARTICLE II
WAIVER AND ACKNOWLEDGMENT
Section 2.1 GE Capital hereby waives the Defaults and Events of Default
specified in Schedule A hereto relating to the period between July 22, 1999 and
the First Amendment Date, and any and all rights and remedies that would, in the
absence of this waiver, otherwise be available to GE Capital in connection with
such specified Defaults and Events of Default.
Section 2.2 This First Amendment shall be deemed to be effective
immediately prior to the effectiveness of the New Credit Agreement on the date
hereof.
Section 2.3 The amendments and waivers set forth in Article I and Article
II hereof, respectively, do not alter, waive or amend, except as expressly
provided in this First Amendment, the provisions of the Original Note Purchase
Agreement. Except as expressly set forth in this First Amendment, nothing in
this First Amendment shall be deemed or construed as a waiver or release of, or
a limitation upon, the exercise by GE Capital of any rights and remedies under
the Original Note Purchase Agreement, whether arising as a consequence of any
Events of Default which may now exist or otherwise, and any and all such rights
and remedies are hereby expressly reserved.
ARTICLE III
PREPAYMENT OF NOTE
Notwithstanding anything in the Original Note Purchase Agreement to the
contrary, the Company and GE Capital agree that, upon execution and delivery of
this First Amendment, the Company will pay to GE Capital, by wire transfer of
immediately available funds, the sum of TEN MILLION DOLLARS ($10,000,000) (such
sum, the "Principal Prepayment"). GE Capital shall have no obligation to
readvance the Principal Prepayment. Such Principal Prepayment shall reduce the
principal amount outstanding of the Note dated July 22, 1999 to the amount of
TWENTY MILLION DOLLARS ($20,000,000). To evidence the reduction of the
outstanding principal amount, the Company shall deliver to General Electric
Capital Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: GE
Equity Group - Technology and Communications Group, an amended and restated note
in the form attached as Annex A (the "Amended and Restated Note"). Upon receipt
of the Amended and Restated Note, GE Capital will send the Original Note marked
"$10,000,000 Paid," signed by an authorized officer of GE Capital, by Federal
Express Overnight Delivery, to the attention of ▇▇▇▇▇ ▇▇▇▇▇, iGate Capital
Corporation ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
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15071. Following the wire transfer by the Company of the Principal Prepayment,
any and all references in the Original Note Purchase Agreement, as amended
hereby, to the Note shall be deemed to be a reference to the Amended and
Restated Note.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
Section 4.1 Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants that:
(a) the execution, delivery and performance by Company of this First
Amendment has been duly authorized by all necessary or proper corporate action
and the First Amendment is a legal, valid and binding obligation of Company,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(b) the execution, delivery and performance by Company of this First
Amendment shall not contravene, result in a breach of, or violate, any provision
of Company's articles of incorporation or by-laws; any law or regulation, or any
order or decree of any court or governmental instrumentality, or any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which Company
or any of its Subsidiaries is a party or by which Company, any of its
Subsidiaries or any of their property is bound.
(c) other than as specified in Section 2.1, there are no Defaults or
Events of Default which have occurred under the Original Note Purchase
Agreement.
(d) subject to the Supplement to Disclosure Schedule attached hereto,
the representations and warranties of the Company contained in the Original Note
Purchase Agreement are true and correct as of the date hereof (except such
representations and warranties that refer to an earlier date which are true and
correct as of such earlier date).
Section 4.2 Registration Statement on Form S-3. The Company hereby
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covenants that it will use its best efforts to cause to be declared effective a
Registration Statement on Form S-3 with respect to the shares issuable upon
conversion of the Amended and Restated Note no later than September 15, 2000;
provided, however, that this Section 4.2 shall not be construed to modify any
right or obligation of the parties contained in the Registration Rights
Agreement dated July 22, 1999 between the Company and GE Capital.
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ARTICLE V
GENERAL PROVISIONS
Section 5.1 References. All notices, communications, agreements,
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certificates, documents or other instruments executed and delivered after the
execution and delivery of this First Amendment in connection with the Original
Note Purchase Agreement or the transactions contemplated thereby may refer to
the Original Note Purchase Agreement without making any specific reference to
this First Amendment, but nevertheless all such references shall include this
First Amendment unless the context otherwise requires. From and after the
Amendment Effective Date, all references in the Original Note Purchase Agreement
and the Note to the "Agreement" shall be deemed to be references to the Original
Note Purchase Agreement as amended hereby.
Section 5.2 Incorporation into Original Note Purchase Agreement. This
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First Amendment is deemed incorporated into the Original Note Purchase
Agreement. To the extent that any term or provision of this First Amendment is
or may be deemed expressly inconsistent with any term or provision of the
Original Note Purchase Agreement, the terms and provisions hereof shall control.
Section 5.3 Capitalized Terms. Except as otherwise defined herein,
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capitalized terms used but not defined herein shall have the same meanings
herein as are ascribed to them in the Original Note Purchase Agreement, as
amended hereby.
Section 5.4 Section and Other Headings. The section and other headings
--------------------------
contained in this First Amendment are for reference purposes only and shall not
affect the meaning or interpretation of this First Amendment.
Section 5.5 Counterparts. This First Amendment may be executed in any
------------
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
Section 5.6 Publicity. Neither the Company nor GE Capital shall issue any
---------
press release or make any public disclosure regarding the transactions
contemplated hereby unless such press release or public disclosure is approved
by the other party in advance. Notwithstanding the foregoing, each of the
parties hereto may, in documents required to be filed by it with the SEC or
other regulatory bodies, make such statements with respect to the transactions
contemplated hereby as each may be advised by counsel is legally necessary or
advisable, and may make such disclosure as it is advised by its counsel is
required by law.
Section 5.7 Governing Law. This First Amendment shall be governed by, and
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construed and enforced in accordance with, the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws, and any applicable laws of the
United States of America.
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Section 5.8 Ratification of Terms. Except as expressly amended by this
---------------------
First Amendment, subject to the Supplement to Disclosure Schedule attached
hereto, the Original Note Purchase Agreement and each and every representation,
warranty, covenant, term and condition contained therein shall remain in full
force and effect and is specifically ratified and confirmed.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company and GE Capital have executed this First
Amendment as of the day and year first above written.
iGATE CAPITAL CORPORATION
By: ________________________________
Name:
Title:
GE CAPITAL EQUITY INVESTMENTS, INC.
By: ________________________________
Name:
Title:
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