Exhibit 10.1
EXECUTION COPY
WAIVER, CONSENT AND EIGHTH
AMENDMENT
TO AMENDED AND RESTATED FINANCING
AGREEMENT
WAIVER, CONSENT AND EIGHTH
AMENDMENT, dated as of October 2, 2009 (the “ Eighth
Amendment ”), to the Financing Agreement referred to
below, by and among (i) ENHERENT CORP., a Delaware corporation
(“ enherent ” or the “ Parent
”), and each Subsidiary of Parent listed as a borrower on the
signature pages thereto (together with the Parent, each, a “
Borrower ” and collectively, the “
Borrowers ”), and (ii) ABLECO FINANCE LLC, a
Delaware limited liability company (“ Ableco ”)
as lender and as agent (in such capacity, the “ Agent
”) for itself and each Person that purchases any portion of
Ableco’s rights and obligations under the Financing Agreement
pursuant to Sections 2.07 and 10.07 thereof (collectively with
Ableco, the “ Lenders ”).
WHEREAS, the Borrowers, the Agent
and the Lenders are parties to the Amended and Restated Financing
Agreement dated as of April 1, 2005 (as amended to date, the
“ Financing Agreement ”), pursuant to which the
Lenders have agreed to make certain term loans and revolving loans
to the Borrowers from time to time in an aggregate principal amount
at any time outstanding not to exceed the aggregate amount set
forth in the Financing Agreement; and
WHEREAS, the Borrowers have
requested that the Agent and the Lenders (a) amend certain
provisions of the Financing Agreement to, among other things, amend
certain provisions relating to the Term Loan B amortization set
forth in Section 2.03(a) of the Financing Agreement; and
(b) waive the Events of Default arising under Sections 8.01(d)
and (e) of the Financing Agreement as a result of the
Borrowers’ failure to comply with Section 6.03 of the
Financing Agreement as more fully described in Section 2
hereof; and based upon the terms and conditions set forth herein,
the Lenders and the Agent have agreed to such waiver;
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the parties
hereto hereby agree as follows:
1. Definitions in Eighth
Amendment . Any capitalized term used herein and not defined
shall have the meaning assigned to it in the Financing
Agreement.
2. Amendments .
(a) Section 1.01 of the
Financing Agreement is hereby amended by adding the following new
definitions in their appropriate alphabetical order, as
follows:
“‘ Eighth
Amendment ’ means the Waiver, Consent and Eighth
Amendment to Amended and Restated Financing Agreement, dated as of
October 2, 2009, by and among the Borrowers, the Agent and the
Lenders.”
“‘ Eighth Amendment
Effective Date ’ means the later of (i) October 2,
2009 and (ii) the date on which all of the conditions
precedent set forth in Section 3 of the Eighth Amendment have
been satisfied or waived in writing.”
(b) Section 2.03(c) of the
Financing Agreement is hereby amended and restated in its entirety
to read as follows:
“(c) As of the close of
business on the Eighth Amendment Effective Date, the aggregate
amount outstanding under Term Loan B is $642,000, which amount
shall be repayable in consecutive monthly installments on the first
day of each month, commencing on October 6, 2009 until the
Term Loan B Maturity Date, each such monthly installment in an
aggregate amount equal to (i) in the case of the
October 6, 2009 installment, $20,178, (ii) in the case of
November and December of 2009, $10,000 and (iii) for each
month thereafter, $47,000; provided , however , that
the last such installment shall be in the amount necessary to repay
in full the unpaid principal amount of the Term Loan B, as well as
any other outstanding interest or fees related
thereto.”
(c) Section 2.04(a) of the
Financing Agreement is hereby amended and restated in its entirety
to read as follows”
“(a) Loans.
(i) Each Revolving Loan shall bear
interest on the principal amount thereof from time to time
outstanding, from the date of such Loan until such principal amount
becomes due, at a rate per annum equal to the Reference Rate plus
(A) at any time prior to the Eighth Amendment Effective Date,
4.00% and (B) at any time thereafter, 4.50%;
(ii) Subject to the terms of this
Agreement, at the option of the Borrower, the Term Loan B or any
portion thereof shall be either a Reference Rate Loan or a LIBOR
Rate Loan. Each portion of the Term Loan B that is a Reference Rate
Loan shall bear interest on the principal amount thereof from time
to time outstanding, at a rate per annum equal to the Reference
Rate plus 0.75%. Each portion of the Term Loan B that is a LIBOR
Rate Loan shall bear interest on the principal amount thereof from
time to time outstanding, from the date such portion of the Term
Loan B is converted to, or continued as, a LIBOR Rate Loan until
repaid or converted back to a Reference Rate Loan, at a rate per
annum equal to the LIBOR Rate for the Interest Period in effect for
the Term Loan B (or such portion thereof) plus
4.50%.”
3. Waiver and Consent
.
(a) Pursuant to the request by the
Borrowers, but subject to satisfaction of the conditions set forth
in Section 3 hereof, and in reliance upon (i) the
representations and warranties of Borrowers set forth herein and in
the Financing Agreement and (ii) the agreements of the
Borrowers set forth herein, the Lenders and the Agent hereby waive
any Event of Default that may arise under Sections 8.01(d) and
(e) of the Financing Agreement by reason of (A) the
Borrowers’ failure to maintain the minimum Fixed Charge
Coverage Ratio for the fiscal quarter ending September 30,
2009 in accordance with Section 6.03(a) of the Financing
Agreement and (B) the Borrowers’ failure to maintain the
minimum Consolidated EBITDA for the fiscal quarter ending
September 30, 2009 in accordance with Section 6.03(b) of
the Financing Agreement.
-2-
(b) The waiver in this
Section 2 shall be effective only in this specific instance
and for the specific purposes set forth herein and does not allow
for any other or further departure from the terms and conditions of
the Financing Agreement or any other Loan Document, which terms and
conditions shall remain in full force and effect.
4. Conditions to
Effectiveness . This Eighth Amendment shall become effective
only upon satisfaction in full, in a manner satisfactory to the
Agent, of the following conditions precedent (the first date upon
which all such conditions shall have been satisfied being herein
called the “ Eighth Amendment Effective Date
”):
(a) The representations and
warranties contained herein, in Section 5.01 of the Financing
Agreement and in each other Loan Document and certificate or other
writing delivered to the Agent pursuant hereto on or prior to the
Eighth Amendment Effective Date shall be correct on and as of the
Eighth Amendment Effective Date as though made on and as of such
date, except to the extent that such representations and warranties
(or any schedules related thereto) expressly relate solely to an
earlier date (in which case such representations and warranties
shall be true and correct on and as of such date); and, no Default
or Event of Default (other than the Event of Default waived by
Section 2 hereof) shall have occurred and be continuing on the
Eighth Amendment Effective Date.
(b) The Agent shall have received
counterparts of this Eighth Amendment which bear the signatures of
each Borrower.
(c) All legal matters incident to
this Eighth Amendment shall be satisfactory to the Agent and its
counsel.
5. Representations and
Warranties . Each Borrower hereby represents and warrants to
the Agent and the Lenders as follows:
(a) Representations and
Warranties; No Event of Default . The representations and
warranties herein, in Section 5.01 of the Financing Agreement
and in each other Loan Docu
