|
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
| 
