Exhibit 10.15
FIRST AMENDMENT
TO
SECOND AMENDED AND RESTATED
LOAN AND SECUTITY AGREEMENT
This First Amendment to the Second Amended and Restated Loan and Security
Agreement (the "Amendment") is entered into as of July 2, 2002, by and between
COMERICA BANK - CALIFORNIA ("Bank") and INPHONIC, INC. and SIMIPC ACQUISITION
CORP. ("Borrower").
RECITALS
Borrower and Bank are parties to that certain Second Amended and
Restated Loan and Security Agreement dated as of March 1, 2002, (as amended from
time to time, together with any related agreements, the "Agreement").
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness." The parties desire to amend the Agreement in accordance with
the terms of this Amendment. This Amendment shall be effective as of March 31,
2002.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. Incorporation by Reference. The Recitals and the documents referred to
therein are incorporated herein by their reference. Except as
otherwise noted, the terms not defined herein shall have the meaning
set forth in the Agreement.
II. Amendment to the Agreement. Subject to the satisfaction of the
conditions precedent as set forth in Article III hereof, the Agreement
is hereby amended as set forth below.
A. Section 6.2(b) of the Agreement is hereby extended from "June
30, 2002" to "July 31, 2002."
B. Section 6.7(a) of the Agreement is hereby deleted in its
entirety and replaced with the following financial covenant:
Minimum Cash. At all times the Borrower is required to
maintain unrestricted cash balances in the Bank equal to at
least 2 times its outstandings (including non-cash secured
Letters of Credit) under Bank facilities.
C. Section 6.7(b) of the Agreement is hereby deleted in its
entirety.
III. Legal Effect.
A. The Agreement is hereby amended wherever necessary to reflect
the changes described above.
B. Borrower agrees that it has no defenses against the
obligations to pay any amounts under the Indebtedness.
C. Borrower understands and agrees that in modifying the existing
Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Agreement.
Except as expressly modified pursuant to this Amendment, the
terms of the Agreement remain unchanged, and in full force and
effect. Bank's agreement to modifications to the existing
indebtedness pursuant to this Amendment in no way shall
obligate Bank to make any future modifications to the
Indebtedness. Nothing in this Amendment shall constitute a
satisfaction of the Indebtedness. It is the intention of Bank
and Borrower to retain as liable parties, all makers
AMENDMENT
PAGE 1 of 2
and endorsers of Agreement, unless the party is expressly
released by Bank in writing. No maker, endorser, or guarantor
will be released by virtue of this Amendment. The terms of
this paragraph apply not only to this Amendment, but also to
all subsequent loan modification requests.
D. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one instrument.
E. This is an integrated Amendment and supersedes all prior
negotiations and agreements regarding the subject matter
hereof. All modifications hereto must be in writing and signed
by the parties.
IV. Conditions Precedent. Except as specifically set forth in this
Amendment, all of the terms and conditions of the Agreement remain in
full force and effect. The effectiveness of this Agreement is
conditioned upon receipt by Bank of this Amendment, and any other
documents which Bank may require to carry out the terms hereof,
including but not limited to the following:
A. This Amendment, duly executed by Borrower;
B. A legal fee from the Borrower in the amount of $250; and
C. Such other documents, and completion of such other matters, as
Bank may reasonably deem necessary or appropriate.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.
INPHONIC, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________
Title:___________________________
SIMIPC ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
_____________________________
Title:___________________________
COMMERICA BANK - CALIFORNIA
By: /s/ Xxxxxxx Steel
_____________________________
Title:___________________________
AMENDMENT
PAGE 2 of 2
