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EXHIBIT
10.26
WAIVER, CONSENT AND THIRD
AMENDMENT
TO AMENDED AND RESTATED
FINANCING AGREEMENT
WAIVER, CONSENT AND THIRD
AMENDMENT, dated as of August 27, 2007 (the “ Third
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;
WHEREAS, the Borrowers have
(a) notified the Lenders that the Tudor Notes and the EFG
Notes have been amended and restated in their entirety and were
replaced with new notes, copies of which are attached hereto as
Exhibit A (the “ New Subordinate Notes ”) and
(b) requested that the Lenders (i) waive any Event of
Default that might otherwise arise under Section 8.01(d) of
the Financing Agreement as a result of the Borrowers’
amending and restating the Tudor Notes and the EFG Note in
violation of Section 6.02(r) of the Financing Agreement and
(ii) amend Section 6.03(a) of the Financing Agreement;
and based upon the terms and conditions set forth herein, the
Lenders 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:
1.1 Definitions in Third
Amendment . Any capitalized term used herein and not defined
shall have the meaning assigned to it in the Financing
Agreement.
1.2 Amendment to the
Financing Agreement . Section 6.03(a) of the Financing
Agreement is hereby amended and restated in its entirety to read as
follows:
“(a) Fixed Charge
Coverage Ratio . Permit the Fixed Charge Coverage Ratio, at the
end of the fiscal quarter of the Parent and its Subsidiaries at the
end of any fiscal quarter of the Parent and its Subsidiaries to be
less than 1.0 to 1.0; provided that for the purpose of calculating
the Fixed Charge Coverage Ratio for the fiscal quarter of the
Parent and its Subsidiaries ending December 31, 2007, the
payment of $212,500 required to be made by the Borrower under
Section 2.02(c) of this Agreement shall be excluded from
clause (ii)(A) of the definition of Fixed Charge Coverage
Ratio.”
2. Waiver and Consent
.
(a) Subject to Section 3
hereof, the Lenders consent to, and waive any Event of Default that
would otherwise arise under Section 8.01(d) the Financing
Agreement as a result of the Borrowers’ failure to comply
with Section 6.02(r) of the Financing Agreement due to the
amendment and restatement of the Tudor Note and the EFG Notes and
the replacement of such notes with the New Subordinated
Notes.
(b) The waiver in this
Section 2 shall be effective only in this specific instance
and for the specific purpose 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 continue in full force and effect.
3. Conditions to
Effectiveness . This Third 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 “ Third 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
Third Amendment Effective Date shall be correct on and as of the
Third 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)
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