Exhibit 10.47(c)
AMENDMENT NO. 1
TO
AMENDED AND RESTATED LOAN AGREEMENT
Amendment No. 1, dated January 18, 2000, 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") and Electronic Data Submission Systems,
Inc., a Delaware corporation ("Borrower")
WHEREAS, Borrower and Lender wish to increase the credit available
under this Loan Agreement as a bridge to a proposed long term debt or equity
financing of the Borrower from third parties, which may include banks (the
"Proposed Financing"), and
WHEREAS, the parties wish to amend the Loan Agreement to reflect this
transaction,
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 definitions set forth in Section 1.1 of the Loan
Agreement be, and they hereby are, amended to read, in their entirety, as
follows:
"Commitment" - the obligation of National to make Loans
hereunder in the aggregate principal amount at any one time outstanding
equal to the sum of (i) the Initial Commitment and (ii) the Bridge
Commitment. "Bridge Commitment" shall mean up to One Million Dollars
($1,000,000) until the earlier of January 18, 2001and the date on which
the Proposed Financing occurs, and thereafter Zero Dollars ($0).
"Initial Commitment" shall mean up to One Million Eight Hundred
Thousand Dollars ($1,800,000).
"Note" - the Note and the Bridge Note, as defined in
subsection 2.4(a) hereof.
2. Section 2.4 of the Loan Agreement be, and it hereby is,
amended to read, in its entirety, as follows:
Section 2.4. NOTES.
(a) The Loans in respect of the Initial Commitment shall be
evidenced by a single promissory note of the Borrower in substantially
the form of Exhibit A annexed
hereto (the "Note"), dated the date hereof, payable to the order of
National, in a principal amount equal to the Initial Commitment and
otherwise duly completed. The Loans in respect of the Bridge Commitment
shall be made only in accordance with a budget approved from time to
time by the Lender and shall be evidenced by a single promissory note
of the Borrower in substantially the form of Exhibit K annexed hereto
(the "Bridge Note"), dated January 14, 2000, payable to the order of
National, in a principal amount equal to the Bridge Commitment as
originally in effect and otherwise duly completed. The Obligations
pursuant to the Bridge Note shall be prepaid in full prior to payment
of any other Obligations.
(b) All Loans made by National hereunder in respect of the
Initial Commitment and all payments and prepayments made on account of
the principal thereof, shall be recorded by National on the schedule
attached to the Note (provided that any failure by National to make any
such notation shall not affect the obligations of the Borrower
hereunder or under the Note in respect of the Loans). All Loans made by
National hereunder in respect of the Bridge Commitment and all payments
and prepayments made on account of the principal thereof, shall be
recorded by National on the schedule attached to the Bridge Note
(provided that any failure by National to make any such notation shall
not affect the obligations of the Borrower hereunder or under the
Bridge Note in respect of the Loans).
3. Section 2.5(a) of the Loan Agreement be, and it hereby is,
amended to read, in its entirety, as follows:
Section 2.5. PAYMENT OF LOANS.
(a) 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 outstanding on the Commitment
Termination Date, in twenty-three (23) consecutive equal monthly
installments commencing on the Commitment Termination Date and on the
last day of each month thereafter to and including March 31, 2003, when
all principal with respect to the Loans shall be due and payable.
4. Section 2.9 of the Loan Agreement be, and it hereby is,
amended to read, in its entirety, as follows:
Section 2.9. PROPOSED FINANCING; FEE FOR BRIDGE COMMITMENT.
(a) Each of the parties agrees to use its reasonable best
efforts to complete the Proposed Financing and to cause the prepayment
of the Bridge Note on or prior to the date that the Bridge Note becomes
due and payable.
(b) In consideration of the Bridge Commitment, the Borrower
agrees to issue to National, simultaneously with the execution hereof,
the warrant in the form
attached hereto as Exhibit L (the "Warrant"). The issuance of the
Warrant has been duly and validly authorized and when issued in
accordance with the terms hereof constitutes the valid and binding
obligation of the Borrower, in full force and effect and enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity. The issuance of securities
(the "Underlying Shares") issuable upon exercise of the Warrant has
been duly authorized and the Underlying Shares have been, and at all
times prior to such conversion or exercise will have been, duly
reserved for issuance upon such conversion or exercise and, when so
issued, will be validly issued, fully paid and non-assessable.
5. Exhibits K and L attached hereto shall be deemed to be
Exhibits K and L to the Loan Agreement and a part thereof.
6. 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 letter amendment has
been duly authorized by the Borrower and is the valid, binding and enforceable
obligation of Borrower, enforceable in accordance with its terms.
7. 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 letter amendment shall not
affect any of the rights of Lender with respect thereto.
8. Capitalized terms used but not defined herein shall have the
meaning set forth in the Loan Agreement.
9. Each of the parties (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.
10. This Amendment No. 1 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. 1 by fax shall be as effective as delivery of a
manually executed signature page hereto.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first above set forth.
NATIONAL WIRELESS HOLDINGS
INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: President
AGREED:
ELECTRONIC DATA SUBMISSION SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: President
THE UNDERSIGNED LOAN PARTY HEREBY CONFIRMS THAT ALL GUARANTY AND OTHER
AGREEMENTS FURNISHED BY THE UNDERSIGNED WITH RESPECT TO THE OBLIGATIONS UNDER
THE LOAN AGREEMENT REMAIN IN FULL FORCE AND EFFECT AFTER GIVING EFFECT TO THE
FOREGOING AMENDMENT.
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
