EXHIBIT 10.3D
AMENDMENT NO. 1 TO CREDIT AGREEMENT AND WAIVER
This Amendment No. 1 to Credit Agreement and Waiver (this "Agreement")
dated as of May 5, 2006 is made by and among INFOCROSSING, INC., a Delaware
corporation (the "Borrower"), BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States ("Bank of
America"), in its capacity as administrative agent for the Lenders (as defined
in the Credit Agreement (as defined below)) (in such capacity, the
"Administrative Agent"), and each of the Lenders signatory hereto, and each of
the Guarantors (as defined in the Credit Agreement) signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of November 30, 2005 (as
hereby amended and as from time to time hereafter further amended, modified,
supplemented, restated, or amended and restated, the "Credit Agreement";
capitalized terms used in this Agreement not otherwise defined herein shall have
the respective meanings given thereto in the Credit Agreement), pursuant to
which the Lenders have made available to the Borrower a term loan facility and a
revolving credit facility, including a letter of credit facility and a swing
line facility; and
WHEREAS, each of the Guarantors has entered into a Guaranty pursuant to
which it has guaranteed the payment and performance of the obligations of the
Borrower under the Credit Agreement and the other Loan Documents; and
WHEREAS, the Borrower has advised the Administrative Agent and the
Lenders that it desires to amend Section 2.06(b)(iv) of the Credit Agreement and
to obtain a waiver of any Event of Default that may have occurred as a result of
a violation thereof on or prior to the date hereof, and the Administrative Agent
and the Lenders signatory hereto are willing to effect such amendment and waiver
on the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and further valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Amendments to Credit Agreement. Subject to the terms and conditions set forth
herein, Section 2.06(b)(iv) of the Credit Agreement is hereby amended by
deleting such section and replacing it with the following:
"(iv) Within ten (10) Business Days after each private or
public issuance of Equity Interests of the Borrower or any of its
Subsidiaries other than any issuance arising from the exercise of
options for Equity Interests of the Borrower or any of its
Subsidiaries, the Borrower shall prepay an aggregate principal amount
of Loans equal to 50% of all Net Cash Proceeds received therefrom.
Within three (3) Business Days after the last day of each fiscal
quarter of the Borrower, the Borrower shall prepay an aggregate
principal amount of Loans equal to 50% of all Net Cash Proceeds
received from all issuances of Equity Interests of the Borrower or any
of its Subsidiaries arising from the exercise of options for Equity
Interests of the Borrower or any of its Subsidiaries during such
fiscal quarter; provided that no prepayment shall be required for the
first $500,000 in Net Cash Proceeds in any year received from such
exercises of options. In each case, the Borrower shall provide the
Administrative Agent not less than three (3) Business Days' prior
written notice (or one (1) Business Day's prior written notice, in the
case of prepayment of any Base Rate Loan) of each such prepayment,
which notice shall include a certificate of a Responsible Officer of
the Borrower setting forth in reasonable detail the calculations
utilized in computing the Net Cash Proceeds of such issuance.
Notwithstanding the application of this Section 2.06(b)(iv) to any
issuance of Equity Interests that is not otherwise permitted under
this Agreement, nothing in this Section 2.06(b)(iv) shall be deemed to
permit any issuance of Equity Interests of the Borrower or any
Subsidiary not expressly permitted under this Agreement or to
constitute a waiver or cure of any Default or Event of Default that
arises as a result of the issuance of any such Equity Interests that
is not permitted under this Agreement."
2. Waiver and Agreement. Effective as of the date hereof, by the
execution of this Agreement, the Administrative Agent and the Lenders
signatory hereto hereby waive any Event of Default that may have
occurred as a result of a violation of Section 2.06(b)(iv) on or prior
to the date hereof. The Administrative Agent and the Lenders signatory
hereto hereby agree that with respect to the issuance of Equity
Interests arising from the exercise of options for Equity Interests of
the Borrower or any of its Subsidiaries during the fiscal year of the
Borrower ending December 31, 2006, the amendment set forth in Section
1 of this Agreement shall be deemed to have been in effect as of
January 1, 2006.
3. Effectiveness; Conditions Precedent. The effectiveness of this
Agreement and the amendment to the Credit Agreement, waiver and other
agreements herein provided are subject to the satisfaction of the
following conditions precedent:
(a) the Administrative Agent shall have received each of the following
documents or instruments in form and substance reasonably acceptable
to the Administrative Agent:
(i) a fully executed counterpart of this Agreement in original form or via
telecopier or other electronic transmission (including .pdf format),
duly executed by the Borrower, the Administrative Agent, each
Guarantor and the Required Lenders, followed promptly by the delivery
of four (4) original counterparts unless such delivery of originals
with respect to any particular Lender is waived by the Administrative
Agent;
(ii) such other documents, instruments, certifications, undertakings,
further assurances and other matters as the Administrative Agent shall
reasonably request; and
(b) all fees and expenses payable to the Administrative Agent and the
Lenders (including the fees and expenses of counsel to the
Administrative Agent) estimated to date shall have been paid in full
(without prejudice to final settling of accounts for such fees and
expenses).
4. Consent of the Guarantors. Each Guarantor hereby consents,
acknowledges and agrees to the amendments set forth herein and hereby
confirms and ratifies in all respects the Guaranty to which such
Guarantor is a party (including without limitation the continuation of
such Guarantor's payment and performance obligations thereunder upon
and after the effectiveness of this Agreement and the amendments and
waiver contemplated hereby) and the enforceability of such Guaranty
against such Guarantor in accordance with its terms.
5. Representations and Warranties. In order to induce the Administrative
Agent and the Lenders to enter into this Agreement, the Borrower
represents and warrants to the Administrative Agent and the Lenders as
follows:
(a) The representations and warranties made by each Loan Party in Article
V of the Credit Agreement and in each of the other Loan Documents to
which such Loan Party is a party are true and correct in all material
respects (except that any representation and warranty that is
qualified as written as to "materiality" or "Material Adverse Effect"
shall be true and correct in all respects) on and as of the date
hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be
true and correct in all material respects (except that any
representation and warranty that is qualified as written as to
"materiality" or "Material Adverse Effect" shall be true and correct
in all respects) as of such earlier date, and except that the
representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a), (b) and (c), respectively, of
Section 6.01;
(b) The Persons appearing as Guarantors on the signature pages to this
Agreement constitute all Persons who are required to be Guarantors
pursuant to the terms of the Credit Agreement and the other Loan
Documents, including without limitation all Persons who became
Subsidiaries or were otherwise required to become Guarantors after the
Closing Date, and each of such Persons has become and remains a party
to a Guaranty as a Guarantor;
(c) This Agreement has been duly authorized, executed and delivered by the
Borrower and Guarantors party hereto and constitutes a legal, valid
and binding obligation of such parties, except as may be limited by
general principles of equity or by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally; and
(d) After giving effect to this Agreement, no Default or Event of Default
has occurred and is continuing.
6. Entire Agreement. This Agreement, together with all the Loan Documents
(collectively, the "Relevant Documents"), sets forth the entire
understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and
agreements among the parties relating to such subject matter. No
promise, condition, representation or warranty, express or implied,
not set forth in the Relevant Documents shall bind any party hereto,
and no such party has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges
that, except as otherwise expressly stated in the Relevant Documents,
no representations, warranties or commitments, express or implied,
have been made by any party to the other in relation to the subject
matter hereof or thereof. None of the terms or conditions of this
Agreement may be changed, modified, waived or canceled orally or
otherwise, except in writing and in accordance with Section 10.01 of
the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other
Loan Documents are hereby confirmed and ratified in all respects and
shall be and remain in full force and effect according to their
respective terms.
8. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed original counterpart of
this Agreement.
9. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of New York
applicable to contracts executed and to be performed entirely within
such State, and shall be further subject to the provisions of Sections
10.14 and 10.15 of the Credit Agreement.
10. Enforceability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall
remain effective and binding on the parties hereto.
11. References. All references in any of the Loan Documents to the "Credit
Agreement" shall mean the Credit Agreement, as amended hereby.
12. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Administrative Agent and each of
the Guarantors and Lenders, and their respective successors, legal
representatives, and assignees to the extent such assignees are
permitted assignees as provided in Section 10.06 of the Credit
Agreement.
[Signature pages follow.]
Amendment No. 1 to Credit Agreement and Waiver
Infocrossing, Inc.
Signature Pages
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
BORROWER:
INFOCROSSING, INC.
By: /s/ Robert B. Wallach
Name: Robert B. Wallach
Title: President
GUARANTORS:
ETG, INC.
INFOCROSSING SERVICES, INC.
INFOCROSSING SOUTHEAST, INC.
INFOCROSSING WEST, INC.
INFOCROSSING HEALTHCARE SERVICES, INC.
INFOCROSSING SERVICES SOUTHEAST, INC.
INFOCROSSING SERVICES WEST, INC.
By: /s/ William J. McHale
Name: William J. McHale
Title: Vice President
(i)STRUCTURE, LLC
By: /s/ William J. McHale
Name: William J. McHale
Title: Vice President
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: /s/ Madeline A. Ferrari
Name: Madeline A. Ferrari
Title: Vice President
LENDERS:
BANK OF AMERICA, N.A.
By: /s/ William S. Rowe
Name: William S. Rowe
Title: Principal
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Brian P. Schwinn
Name: Brian P. Schwinn
Title: Duly Authorized Signatory
SOVEREIGN BANK
By:
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Name:
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Title:
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CIFC FUNDING 2006-I, LTD.
By: /s/ Sean O. Dougherty
Name: Sean O. Dougherty
Title: General Counsel