Exhibit 10.29
WAIVER UNDER AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS WAIVER UNDER AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this “Waiver”) is
entered into as of August 25, 2008, 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 INTERNATIONAL CORP. , a Delaware corporation
(“TIC”), TELOS INTERNATIONAL ASIA, INC. , a
Delaware corporation (“TIA”), SECURE TRADE, INC.
, a Delaware corporation (“STI”) and TELOWORKS,
INC. , a Delaware corporation (“Teloworks”;
Telos-Delaware, Ubiquity, TIC, TIA, STI and Teloworks 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 Amended and Restated Loan and Security Agreement dated as
of April 3, 2008, but effective as of March 31, 2008 (as
amended from time to time, the “Loan
Agreement”);
WHEREAS, Borrowers and Credit
Parties have notified Agent that an Event of Default exists under
Section 8.2 of the Loan Agreement due to the failure of the
Companies to deliver audited financial statements and a certificate
of accountants related thereto for the fiscal year of Parent ending
December 31, 2007 (the “2007 Audit”) as required
by Section 6.3(b) of the Loan Agreement within 105 days after
the end of such fiscal year (the “Audit
Default”);
WHEREAS, Borrowers and Credit
Parties have requested that Agent and Required Lenders waive the
Audit Default; and
WHEREAS, Agent and Required Lenders
are willing to waive the Audit Default on and subject to the terms
and conditions set forth herein; and
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 4 hereof,
and in reliance upon the representations and warranties contained
herein, Agent and Required Lenders hereby waive the Audit Default,
provided that the waiver of the Audit Default is conditioned upon
the delivery of the 2007 Audit and a certificate of accountants
related thereto to Agent on or before October 31, 2008. This
is a limited waiver and shall not
be deemed to constitute a waiver of, or consent
to, any other existing or future breach of the Loan Agreement or
any other Loan Document, including, without limitation, the failure
of the Companies to deliver to Agent the 2007 Audit and a
certificate of accountants related thereto on or prior to
October 31, 2008, the formation of Teloworks BPO Solutions
Philippines Inc. as a Subsidiary of Teloworks after the Closing
Date in violation of Section 7.3(d) of the Loan Agreement (the
“Subsidiary Default”), and Investments made by the
Companies in Teloworks BPO Solutions Philippines Inc in violation
of Sections 7.13 and 7.14 of the Loan Agreement (the
“Philippines Investment Default”).
3. Ratification . This
Waiver, 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.
4. Conditions to
Effectiveness . This Waiver shall become effective upon the
satisfaction of the following conditions precedent:
(a) Each party hereto shall have
executed and delivered this Waiver to Agent;
(b) Agent shall have received the
fee described in Section 5 hereof;
(c) Borrowers shall have delivered
to Agent such documents, agreements and instruments as may be
requested or required by Agent in connection with this Waiver, each
in form and content acceptable to Agent;
(d) No Default or Event of Default
other than the Subsidiary Default and the Investment Default shall
have occurred and be continuing on the date hereof or as of the
date of the effectiveness of this Waiver; and
(e) All proceedings taken in
connection with the transactions contemplated by this Waiver
and
