Exhibit 10.12
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT AND
LOAN INSTRUMENTS (the "Amendment") is made effective as of December 31, 2003 by
and among AQUIS WIRELESS COMMUNICATIONS, INC., a Delaware corporation
("Borrower"); and FINOVA CAPITAL CORPORATION ("Lender"), a Delaware corporation.
BACKGROUND
A. Borrower and Lender have previously entered into that certain Second
Amended and Restated Loan Agreement dated August 12, 2002, as amended by that
certain First Amendment to Second Amended and Restated Loan Agreement dated
March 29, 2003 (collectively, the "Loan Agreement").
B. Borrower and Lender now agree to amend the Loan Agreement so as to
remove certain financial covenants contained in the Loan Agreement, and to amend
the payment terms of the Loan Agreement as described in this Amendment.
NOW, THEREFORE, in consideration of foregoing premises and intending to
be legally bound hereby, the parties hereto agree as follows:
TERMS
1. CAPITALIZED TERMS. For purposes of this Amendment, all capitalized
terms used herein and not otherwise defined herein shall have the meanings set
forth for such terms in the Loan Agreement.
2. CONFIRMATION OF BACKGROUND. Borrower hereby ratify, confirm and
acknowledge that the statements contained in the foregoing Background are true
and that the Loan Instruments are valid, binding and in full force and effect as
of the date hereof and fully enforceable against Borrower in accordance with the
terms thereof. Borrower further acknowledge and agree that nothing contained in
this Amendment shall be deemed to impair, reduce or release in any manner
whatsoever any of the obligations of such Loan Party under the Loan Instruments.
3. GENERAL ACKNOWLEDGMENTS. Borrower hereby acknowledge and agree as
follows:
(a) Neither this Amendment nor any other agreement entered into in
connection herewith or pursuant to the terms hereof shall be deemed or construed
to be a compromise, satisfaction, reinstatement, accord and satisfaction,
novation or release of any of the Loan Instruments or any rights or obligations
thereunder, or a waiver by Lender of any of its rights under the Loan
Instruments or at law or in equity, except as expressly provided for herein;
(b) All liens, security interests, rights and remedies granted to the
Lender in and under the Loan Instruments are hereby renewed, confirmed and
continued, and shall also secure the performance by Borrower of their respective
obligations hereunder; and
(c) If at any time a payment or payments made by any Loan Party on any
part of the Obligations are subsequently invalidated, declared to be fraudulent
or preferential, and are set aside or are required to be repaid to a trustee,
receiver or any other person or entity under any bankruptcy act, state or
federal law, common law or equitable cause, then to the extent of such payment
or payments, the Obligations intended to be satisfied shall be revived and
continued in full force and effect as if such payment or payments had not been
made.
4. CHALLENGE TO ENFORCEMENT. Borrower acknowledges and agrees that it
does not have any defense, set-off, counterclaim or challenge against the
payment of any sums owing under the Loan Instruments, or the enforcement of any
of the terms or conditions thereof.
5. ELIMINATION OF FINANCIAL COVENANTS. Section 7.6, Section 7.18,
Section 7.19 and Section 7.20 of the Loan Agreement are hereby deleted in their
entirety from the Loan Agreement and shall no longer be of any force or effect.
6. AMENDMENT OF PAYMENT TERMS. (a) Subsection 2.4.1 and subsection
2.4.2 of the Loan Agreement are hereby deleted in their entirety and replaced
with the following:
2.4.1 Quarterly Excess Cash Payments. Until the Maturity Date, on the
first business day of each fiscal quarter beginning with the fiscal quarter
ending March 31, 2004, Borrower shall pay to Lender payments equal to Borrower's
Excess Cash, as determined at the close of business on the last day of the
preceding fiscal quarter (the "Test Date"). Such payments shall be first applied
to accrued interest and then to outstanding principal. For purposes of this
subsection 2.4.1, "Excess Cash" shall mean (i) the aggregate amount of funds in
Borrower's bank accounts that are in excess of $350,000, less (ii) all amounts
reflected by wires or checks (or similar instruments) that have been initiated
or issued by Borrower prior to the Test Date, but that have not yet cleared
Borrower's bank accounts. In addition to the payments provided for above, as of
the execution of this Amendment, Borrower shall pay to Lender a one-time payment
on the date hereof equal to Borrower's Excess Cash as determined on the date of
this Amendment.
2.4.2 Payment at Maturity. Subject to subsection 2.4.1, subsection
2.4.3 and subsection 2.8.2, the Aggregate Principal Balance as of the Maturity
Date, if any, together with all accrued and unpaid interest thereon and all
other sums which then are due and payable pursuant to the terms of the Loan
Instruments, shall be due and payable in full on the Maturity Date.
(b) Section 2.8.2(a) and the definition of "Required Prepayment" (and
all references to such section and such definition) are hereby deleted in their
entirety from the Loan Agreement and shall no longer be of any force or effect.
7. ADDITIONAL DOCUMENTS AND FUTURE ACTIONS BY BORROWER. Borrower will,
at their sole cost, take such actions and provide Lender from time to time with
such agreements, financing statements and additional instruments, documents or
information as Lender may in its discretion deem necessary or advisable to
perfect, protect, maintain or enforce the security interests in the Collateral
or to carry out the terms of the Loan Instruments. Borrower hereby authorize and
appoint Lender as their attorney-in-fact, with full power of substitution, to
take such actions as Lender may deem advisable to protect the Collateral and its
interests thereon and its rights thereunder, to execute on Borrower' behalf and
file at Loan Parties' expense financing statements, and amendments thereto, in
those public offices deemed necessary or appropriate by Lender to establish,
maintain and protect a continuously perfected security interest in the
Collateral, and to execute on Borrower' behalf such other documents and notices
as Lender may reasonably deem advisable to protect the Collateral and its
interests therein and its rights thereunder. Such power being coupled with an
interest is irrevocable.
8. ADDITIONAL ACTIONS AND FUTURE ACTIONS BY LENDER. Lender agrees that
this Amendment has the effect of amending the Loan Instruments as necessary to
effect the intent of the amendments set forth in Section 7 and 8 hereof. To the
extent that Lender or Borrower determine that the Loan Instruments need to be
further amended to give full effect the amendments to the Loan Agreement set
forth in Section 7 and 8 of this Amendment, Lender agrees that it will cooperate
with Borrower to amend such Loan Instruments.
9. FEES, COSTS, EXPENSES AND EXPENDITURES. Each party will pay all of
its own expenses in connection with the review, preparation, negotiation,
documentation and closing of this Amendment and the consummation of the
transactions contemplated hereunder, whether or not the transactions
contemplated hereunder are consummated.
10. COMMUNICATIONS AND NOTICES. All notices, requests and other
communications made or given in connection with this Amendment or under Loan
Instruments shall be made in accordance with the provisions of the Loan
Agreement.
11. TIME OF ESSENCE. Time is of the essence of this Amendment.
12. BINDING EFFECT. This Amendment and all rights and powers granted
hereby will bind and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. All obligations of Borrower under
this Amendment and the other Forbearance Documents are the joint and several
obligations of each Loan Party.
13. SEVERABILITY. The provisions of this Amendment and all other Loan
Instruments are deemed to be severable, and the invalidity or unenforceability
of any provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
14. NO THIRD PARTY BENEFICIARIES. The rights and benefits of this
Amendment and the Loan Instruments shall not inure to the benefit of any third
party.
15. MODIFICATIONS. No modifications of this Amendment or any of the
shall be binding or enforceable unless in writing and signed by or on behalf of
the party against whom enforcement is sought.
16. LAW GOVERNING. This Amendment will be construed in accordance with
and governed by the laws of the state of Arizona.
17. HEADINGS. The headings of the Articles, Sections, paragraphs and
clauses of this Amendment are inserted for convenience only and shall not be
deemed to constitute a part of this Amendment.
18. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
19. ENTIRE AGREEMENT. This Agreement, together with the Loan Agreement
and the Loan Instruments, constitutes the entire agreement among the parties
hereto concerning the subject matter set forth herein and supersedes all prior
or contemporaneous oral and/or written agreements and representations not
contained herein concerning the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment,
intending to be legally bound hereby.
BORROWER:
AQUIS WIRELESS COMMUNICATIONS, INC., a
Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Title: President and CEO
LENDER:
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
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Title: Vice President
