Exhibit 10.105
WAIVER AND TENTH AMENDMENT
TO
LOAN AND SECURITY
AGREEMENT
THIS WAIVER AND TENTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of May 22, 2006, by and among TELOS
CORPORATION , a Maryland corporation (“Parent”),
XACTA CORPORATION , a Delaware corporation
(“Xacta”; Parent and Xacta are referred to hereinafter
each individually as a “Borrower”, and individually and
collectively, jointly and severally, as the
“Borrowers”), TELOS DELAWARE, INC. , a Delaware
corporation (“Telos-Delaware”), UBIQUITY.COM,
INC. , a Delaware corporation (“Ubiquity”),
TELOS.COM, INC. , a Delaware corporation
(“Telos.com”), TELOS INTERNATIONAL CORP. , a
Delaware corporation (“TIC”), TELOS INTERNATIONAL
ASIA, INC. , a Delaware corporation (“TIA”),
SECURE TRADE, INC. , a Delaware corporation
(“STI”), KUWAIT INTERNATIONAL, INC. , a Delaware
corporation (“KII”), TELOS INFORMATION SYSTEMS,
INC. , a Delaware corporation (“TIS”), TELOS
FIELD ENGINEERING, INC. , a Delaware corporation
(“TFE”), and TELOS FEDERAL SYSTEMS, INC. , a
Delaware corporation (“TFS”; Telos-Delaware, Ubiquity,
Telos.com, TIC, TIA, STI, KII, TIS, TFE and TFS are referred to
hereinafter each individually as a “Credit Party” and
collectively, jointly and severally, as the “Credit
Parties”), and WELLS FARGO FOOTHILL, INC. (formerly
known as Foothill Capital Corporation), as agent
(“Agent”) for the Lenders (defined below) and as a
Lender.
WHEREAS, Borrowers, Credit Parties,
Agent and certain other financial institutions from time to time
party thereto (the “Lenders”) are parties to that
certain Loan and Security Agreement dated as of October 21,
2002 (as amended from time to time, the “Loan
Agreement”);
WHEREAS, the Companies failed to
deliver to Agent (x) the audited financial statements for the
fiscal year ended December 31, 2005 required by
Section 6.3(b) and (y) the unaudited monthly financial
statements and Compliance Certificates for each of the months ended
December 31, 2005, January 31,
2006, February 28, 2006 and March 31, 2006 required
by Section 6.3(a), which resulted in Events of Default under
Section 8.2 of the Loan Agreement (collectively, the
“Existing Defaults”); and
WHEREAS, subject to the terms and
conditions contained herein, Agent and Lenders have agreed to waive
the Existing Defaults and the Borrowers, Credit Parties, Agent and
Lenders have agreed to amend the Loan Agreement in certain
respects.
NOW THEREFORE, in consideration of
the premises and mutual agreements herein contained, the parties
hereto agree as follows:
1. Defined Terms . Unless
otherwise defined herein, capitalized terms used herein shall have
the meanings ascribed to such terms in the Loan
Agreement.
2. Waiver . Subject to the
satisfaction of the conditions set forth in Section 5 hereof,
Agent and Lenders hereby waive the Existing Defaults. The foregoing
shall not constitute a waiver of any other Event of Default that
may exist, or a waiver of any future Event of Default that may
occur.
3. Amendments to Loan
Agreement . Subject to the satisfaction of the conditions set
forth in Section 5 hereof, Section 7.20(a)(i) of the Loan
Agreement is hereby amended and restated in its entirety as
follows:
(i) Minimum EBITDA. EBITDA,
measured on a fiscal month-end basis, for each period set forth
below, of not less than the required amount set forth in the
following table for the applicable period set forth opposite
thereto;
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Applicable Period
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$(6,262,089)
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For the 3 month
period ending March 31, 2006
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$(7,343,765)
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For the 4 month
period ending April 30, 2006
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$(8,580,562)
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For the 5 month
period ending May 31, 2006
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$(9,029,015)
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For the 6 month
period ending June 30, 2006
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$(9,028,285)
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For the 7 month
period ending July 31, 2006
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$(8,277,902)
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For the 8 month
period ending August 31, 2006
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$(4,340,055)
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For the 9 month
period ending September 30, 2006
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$(1,102,568)
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For the 10
month period ending October 31, 2006
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$1,784,009
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For the 11
month period ending November 30, 2006
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85% of EBITDA
for such period as reflected in the most recent Projections
delivered to Agent pursuant to Section 6.3(c) and approved by
Required Lenders but in no event less than $4,250,230
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For the 12
month period ending December 31, 2006 and the 12 month period
ending on the last day of each fiscal month thereafter
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4. Ratification; Other
Agreements . This Amendment, subject to satisfaction of the
conditions provided below, shall constitute an amendment to the
Loan Agreement and all of the Loan Documents as appropriate to
express the agreements contained herein. Except as specifically set
forth herein, the Loan Agreement and the Loan Documents shall
remain unchanged and in full force and effect in accordance with
their original terms. Companies agree to deliver to Agent
(x) the audited financial statements for the fiscal year ended
December 31, 2005 required by Section 6.3(b) and
(y) the unaudited monthly financial statements and Compliance
Certificates for each of the months ended December 31,
2005, January 31, 2006, February 28, 2006 and
March 31, 2006 required by Section 6.3(a) on or before
May 31, 2006. Failure to deliver any of the foregoing items on
or before May 31, 2006 shall constitute an Event of
Default.
5. Conditions to
Effectiveness . This Amendment shall become effective as of the
date hereof and upon the satisfaction of the following
con
