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Exhibit
10.21
WAIVER
WAIVER (this “
Waiver ”), dated as of April 14, 2008, among
CLEARPOINT BUSINESS RESOURCES, INC. , a Delaware corporation
(the “ Borrower ”), the several banks and other
financial institutions parties to the Credit Agreement (as
hereinafter defined) (collectively, the “ Lenders
”), and MANUFACTURERS AND TRADERS TRUST COMPANY , as
Administrative Agent for the Lenders (in such capacity, the “
Administrative Agent ”).
W I T
N E S S E T H
:
WHEREAS , the
Borrower, the Lenders and the Administrative Agent are parties to a
Credit Agreement, dated as of February 23, 2007 (as amended,
supplemented or otherwise modified, the “ Credit
Agreement ”);
WHEREAS , the Borrower
has advised the Administrative Agent and the Lenders that the
Borrower will not be in compliance with the financial covenants
contained in Section 6.1(a), (b) and (c) of the
Credit Agreement for the period ending December 31, 2007;
and
WHEREAS , the Borrower
has requested that the Lenders waive compliance with such financial
covenants for the period ending December 31, 2007 and the
Lenders have agreed to do so on and subject to the terms
hereof.
NOW, THEREFORE , in
consideration of the foregoing and for other consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Defined Terms
. Unless otherwise defined herein, terms defined in the Credit
Agreement are used herein as therein defined.
2. Waiver
. The Administrative Agent and the Lenders hereby waive the
Borrower’s compliance with the financial covenants set forth
in Section 6.1(a), (b) and (c) of the Credit
Agreement for the period ending December 31, 2007.
3. Representations and
Warranties . The Borrower hereby represents and warrants to
the Lenders and the Administrative Agent that:
(a) No Material Adverse
Change has occurred since December 31, 2007;
(b) After giving effect to
this Waiver, the representations and warranties made in the Loan
Documents are true and correct in all material respects on and as
of the date hereof as if made on and as of the date hereof, except
that any such representation and warranty that is given as of a
particular date or period and relates solely to such date or period
is true and correct in all material respects as of such date or
period; and
(c) This Waiver and the
Consent and Agreement of Guarantors attached hereto (the “
Consent and Agreement of Guarantors ”) have been duly
executed and delivered by the Borrower and the Guarantors, as
applicable, and constitute the legal, valid and binding obligation
of the Borrower and the Guarantors, enforceable in accordance with
their terms.
4. Conditions
Precedent/Waiver Fee . This Waiver shall become effective
as of April 14, 2008, provided that the Administrative Agent
shall have received the following (such date, the “
Effective Date ”):
(a) This Waiver duly executed
and delivered by the Borrower, the Administrative Agent and the
Lenders;
(b) The Consent and Agreement
of Guarantors, a form of which is attached as Exhibit A hereto,
duly executed and delivered by the Guarantors; and
(c) Payment on or before
April 17, 2008 of $50,000, representing one-half of the waiver
fee of $100,000. The other one-half of the waiver fee ( i.e
., the other $50,000) shall be payable on May 16, 2008. In
furtherance thereof, it shall be an Event of Default under the
Credit Agreement if the Borrower fails to pay the second
installment of the waiver fee on or before May 16,
2008.
5. Affirmations
. The Borrower hereby: (a) affirms all the provisions of
the Credit Agreement and the other Loan Documents, (b) agrees
that the terms and conditions of the Credit Agreement and the other
Loan Documents shall continue in full force and effect,
(c) acknowledges, confirms and reaffirms that the collateral
pledged under the Loan Document continues to secure the
Obligations, including those arising under the Credit Agreement,
and (d) acknowledges and agrees that it has no defense,
set-off, counterclaim or challenge against the payment of any sums
currently owing under the Loan Documents or the enforcement of any
of the terms or conditions thereof.
6. Limited Effect
. Except as expressly waived hereby, the Credit Agreement and
the other Loan Documents shall continue to be, and shall remain,
unaltered and in full force and effect in accordance with their
terms. None of the waivers contained herein shall be deemed to
operate as a future waiver or modification of any other term,
condition or covenant of the Credit Agreement or any of the other
Loan Documents, or a waiver of any Event of Default or Default
other than the violation of the financial covenants in
Section 6.1(a), (b) and (c) of the Credit Agreement
for the period ending December 31, 2007. Without limiting the
foregoing, such waiver shall not extend to or operate as a future
waiver of the provisions of Section 6.1(a), (b) or
(c) of the Credit Agreement for any period ending after
December 31, 2007.
7. Release and
Indemnity . (a) Recognizing and in consideration of
the Lenders’ agreements set forth herein, the Borrower and
each Guarantor hereby waives and releases the Administrative Agent,
the Lenders and their respective officers, attorneys, agents, and
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