Exhibit 10.47(h)
AMENDMENT NO. 6
TO
AMENDED AND RESTATED LOAN AGREEMENT
Amendment No. 6, dated as of January 1, 2002, to Amended and Restated Loan
Agreement, dated as of April 20, 1999 (as amended, supplemented or modified from
time to time the "Loan Agreement"), by and between National Wireless Holdings
Inc., a Delaware corporation ("Lender" or "National") and Electronic Network
Systems, Inc. (f/k/a Electronic Data Submission Systems, Inc.), a Delaware
corporation ("Borrower").
WHEREAS, the aggregate accrued and unpaid interest under the Loan
Agreement is $1,010,947 (the "Accrued Interest"), which amount has been added to
the principal amount due;
WHEREAS, the capitalized terms not otherwise defined herein and sections
referenced have the meanings contained in the Loan Agreement; and
WHEREAS, Borrower and Lender wish to amend the terms of the Loan
Agreement;
NOW THEREFORE, in consideration of the mutual promises, representations
and warranties contained herein, and subject to the conditions set forth herein,
the parties hereto hereby agree that:
1. The following definition set forth in Section 1.1 of the Loan
Agreement be, and it hereby is, amended to read, in its entirety, as follows:
"Commitment Termination Date" - December 31, 2003, except as
provided in Section 9.13.
2. Section 2.5(a) of the Loan Agreement be, and it hereby is, amended
to read, in its entirety, as follows:
(a) Subject to earlier prepayment as herein provided or as provided
in the Initial Note, the Borrower shall pay to National the aggregate
principal amount of the Loans in respect of the Initial Commitment
outstanding on December 31, 2003. Subject to earlier prepayment as herein
provided or as provided in the Bridge Note, the Borrower shall pay to
National the aggregate principal amount of the Loans in respect of the
Bridge Commitment and Accrued Interest on December 31, 2003. Subject to
earlier prepayment as herein provided or as provided in the Additional
Note, the Borrower shall pay to National the aggregate principal amount of
the Loans in respect of the Additional Commitment on December 31, 2003.
3. Section 2.6(a) of the Loan Agreement be, and it hereby is, amended
to read, in its entirety, as follows:
(a) The Borrower shall pay to National interest on the unpaid
principal amount of each Loan for the period commencing on the date of
such Loan until such Loan is paid in full (i) at a rate per annum equal to
eight (8%) percent or the Prime Rate,
whichever is greater (provided however, with respect to any calendar
quarter ending prior to the Commitment Termination Date, so long as no
Default or Event of Default shall be in existence, the interest shall be
paid by means of a Loan hereunder as of the due date of such interest,
which Loan shall accrue interest and be payable pursuant to the terms of
this Agreement); provided that if interest is paid quarterly in arrears on
the last day of a calendar quarter with respect to the principal amount
(including accrued interest) of the Loans outstanding during the calendar
quarter then ended, at a rate of five (5%) percent for such quarter and
(ii) upon the payment or prepayment of principal. Interest which is
payable at the Post-Default Rate (hereinafter defined) shall be payable
from time to time on demand of National.
4. Except as expressly amended hereby, all terms and conditions of the
Loan Agreement and all other Loan Documents remain in full force and effect. All
collateral security and guarantees in connection with the Loan Agreement and/or
the Loan Documents are hereby confirmed and ratified in all respects. The
execution, delivery and performance of this amendment has been duly authorized
by the Borrower and is the valid, binding and enforceable obligation of
Borrower, enforceable in accordance with its terms.
5. The Lender reserves all of Lender's rights with respect to any
breaches, defaults, or other matters in existence in connection with the Loan
Agreement, and the execution and delivery of this Amendment No. 6 shall not
affect any of the rights of Lender with respect thereto.
6. Capitalized terms used but not defined herein shall have the meaning
set forth in the Loan Agreement.
7. Each of the parties hereto (i) acknowledges that Xxxx & Hessen LLP has
acted, and from time to time continues to act, as counsel to Lender, or
affiliates thereof, as well as to Borrower, (ii) consents to the representation
of the Borrower and such other representation of Lender by Xxxx & Hessen LLP and
(iii) waives any conflicts of interest claim which may arise therefrom.
8. This Amendment No. 6 may be executed in counterparts, each of which
shall constitute an original but all of which when taken together shall
constitute one contract, and shall become effective when copies hereof which,
when taken together, bear the signatures of each of the parties hereto shall be
delivered to the undersigned. Delivery of an executed counterpart of a signature
page to this Amendment No. 6 by fax shall be as effective as delivery of a
manually executed signature page hereto.
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 6 as of
the date first above set forth.
NATIONAL WIRELESS HOLDINGS INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
________________________
Name: Xxxxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
AGREED:
ELECTRONIC NETWORK SYSTEMS, INC.
By: /s/ Xxx X. English
_____________________
Name: Xxx X. English
Title: President and Chief
Operating Officer
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