Exhibit 10.28


 


SECOND AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is
entered into as of May 21, 2008, by and between CONSONUS ACQUISITION CORP., a
Delaware corporation (“Borrower”), and U.S. BANK NATIONAL ASSOCIATION (“Lender”).


 


RECITALS


 


A.                                   Borrower and Lender entered into that certain
Amended and Restated Credit Agreement, dated as of November 19, 2007, as
amended by that certain First Amendment to Amended and Restated Credit
Agreement (the “Credit Agreement”), pursuant to which Lender agreed to extend
to Borrower certain credit facilities described therein. Capitalized terms used
and not otherwise defined herein shall have the meanings given them in the
Credit Agreement.


 


B.                                     Borrower has requested Lender’s consent to a
subordinate loan (the “Subordinate Loan”) from Proficio Bank to Borrower in the
principal amount of Three Million Dollars, to be evidenced by a promissory note
made by Borrower and payable to the order of Proficio Bank (the “Subordinate
Note”). The proceeds of the Subordinate Loan will be used to pay all amounts
outstanding under the Questar Note.


 


C.                                     Borrower and Lender desire to amend the
Credit Agreement to provide for the Subordinate Loan, to reflect the payment in
full of the Questar Note, and to change certain other terms and provisions
thereof, all on and subject to the terms and conditions set forth herein.


 


	
   

  	
   

  	
  NOW, THEREFORE, Borrower
  and Lender hereby agree as follows:

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  CONDITIONS
  TO LENDER’S OBLIGATIONS. The following are conditions precedent to the
  obligations of Lender 

  
	
  hereunder:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.1

  	
   

  	
  Borrower shall have
  reimbursed Lender’s costs and expenses incurred in connection with this
  Amendment and the transactions contemplated hereby, including, without
  limitation, attorneys’ fees, and documentation costs and charges, whether
  such services are furnished by Lender’s employees or agents or by independent
  contractors;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.2

  	
   

  	
  All payments due and owing
  to Lender under the Loan Documents shall have been paid current as of the
  effective date of this Agreement;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.3

  	
   

  	
  Lender and/or Lender’s
  counsel shall be satisfied with the form of all documents to be executed by
  Borrower in connection with the Subordinate Loan;

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.4

  	
   

  	
  The proceeds of the  Subordinate
  Loan shall have been disbursed and the Questar Note shall have been paid in
  full; and

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1.5

  	
   

  	
  Borrower shall have
  delivered to Lender duly executed copies of all documents required by Lender
  in connection with this Amendment, including but not limited to a
  Subordination and Standstill Agreement, in form and substance approved by
  Lender and/or Lender’s counsel, executed by Proficio Bank.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  AMENDMENTS.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.1

  	
   

  	
  The definitions of
  “Questar” and “Questar Note” in Article 1 of the Credit Agreement are hereby
  deleted in their entirety.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.2

  	
   

  	
  The following definitions
  are hereby added to Article 1  of the Credit Agreement:

  



 

















 


	
   

  	
   

  	
   

  	
   

  	
  “Subordinate Note”
  – means that certain promissory note, of even date herewith, executed by
  Borrower and payable to the order of Proficio Bank in the original principal
  amount of Three Million Dollars ($3,000,000.00).

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.3

  	
   

  	
  All references in the
  Credit Agreement to the Questar Note are hereby amended to refer to the
  Subordinate Note.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.4

  	
   

  	
  Section 6.9 of the Credit
  Agreement is hereby deleted in its entirety and the following substituted
  therefor:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  All notes and loans from
  shareholders of Borrower shall be subordinate to the Obligations. Lender will
  permit Borrower to make payments thereunder provided that no Default or
  Unmatured Default shall have occurred and be continuing or shall exist.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.5

  	
   

  	
  The document numbered 1.15
  of the Loan Documents described on Exhibit A attached to the Credit Agreement
  is hereby deleted and the following substituted therefor:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Subordination and
  Standstill Agreement, dated as of May 21, 2008, executed by and between
  Lender and Proficio Bank.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  BORROWER
  REPRESENTATIONS AND WARRANTIES.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1

  	
   

  	
  Borrower hereby represents
  and warrants that no Default, or event or condition which. with the giving of
  notice or the passage of time or both, would constitute a Default, under any
  of the Loan Documents has occurred and is continuing, and that all
  representations and warranties herein and in the other Loan Documents are
  true and correct, which representations and warranties shall survive
  execution of this Amendment.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.2

  	
   

  	
  Borrower hereby certifies
  that the organizational documents of Borrower previously delivered to Lender
  are in full force and effect and have not been amended or modified.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  MISCELLANEOUS.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1

  	
   

  	
  Confirmation of Credit
  Agreement and other Loan Documents. Borrower hereby affirms and agrees to be bound by all of the terms
  of the Credit Agreement, as amended hereby, and the other Loan Documents.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.2

  	
   

  	
  Non-Impairment. Except as expressly provided herein,
  nothing in this Amendment shall alter or affect any provision, condition, or
  covenant contained in the Credit Agreement or any other Loan Document or
  affect or impair any rights, powers, or remedies of Lender, it being the
  intent of the parties that, except as amended hereby, all of the terms,
  covenants and conditions of the Credit Agreement and the other Loan Documents
  shall remain in full force and effect.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.3

  	
   

  	
  Entire Agreement. This Amendment constitutes the entire
  agreement among the parties - hereto with respect to the subject matter
  hereof.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.4

  	
   

  	
  Governing Law. This Amendment shall be governed by and
  construed in accordance with the laws of the State of Utah.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.5

  	
   

  	
  Counterparts. This Amendment may be executed in two or
  more counterparts, each of which shall be deemed an original and all of which
  together shall constitute one and the same instrument.

  



 


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IN WITNESS WHEREOF, Borrower and Lender have
executed this Agreement as of the date appearing on the first page of this
Agreement.


 


	
   

  	
  “LENDER”

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicholas Hintze

  
	
   

  	
   

  	
  Name: Nicholas Hintze

  
	
   

  	
   

  	
  Title: AVP Assistant Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Daniel Milburn, Chief Operations Officer

  



 


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IN WITNESS WHEREOF, Borrower and Lender have
executed this Agreement as of the date appearing on the first page of this
Agreement.


 


	
   

  	
  “LENDER”

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  “BORROWER”

  
	
   

  	
   

  
	
   

  	
  CONSONUS ACQUISITION
  CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Muir

  
	
   

  	
   

  	
  Robert C. Muir

  
	
   

  	
   

  	
  CFO

  



 


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