Exhibit 10.32
FIRST AMENDMENT TO LOAN INSTRUMENTS
This FIRST AMENDMENT TO LOAN INSTRUMENTS (this "FIRST AMENDMENT"),
dated as of April 10, 2000, is between AQUIS WIRELESS COMMUNICATIONS, INC., a
Delaware corporation formerly known as Aquis Communications, Inc. and BAP
Acquisition Corporation ("BORROWER"), and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("FINOVA"), in its individual capacity and as agent for all Lenders
(this and all other capitalized terms used but not elsewhere defined herein are
defined in Section 2 below).
R E C I T A L S
A. Borrower and FINOVA entered into an Amended and Restated Loan
Agreement dated as of January 31, 2000 (the "LOAN AGREEMENT"), pursuant and
subject to the terms and conditions of which Lenders agreed to make loans and
other financial accommodations to Borrower.
B. Borrower has requested that FINOVA agree to (i) waive a certain
violation of the financial covenants under the Loan Agreement and (ii) make
certain amendments to the Loan Agreement.
C. FINOVA is willing to agree to such requests of Borrower on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, Borrower and FINOVA agree as follows:
1. INCORPORATION OF RECITALS. The Recitals set forth above are
incorporated herein, are acknowledged by Borrower, Agent and Lenders to be true
and correct and by this reference are made a part hereof.
2. DEFINITIONS. All capitalized terms used but not elsewhere defined
herein shall have the respective meanings ascribed to such terms in the Loan
Agreement, as amended by this First Amendment.
3. AMENDMENTS TO LOAN INSTRUMENTS. The Loan Instruments are amended as
set forth below:
(a) SECTION 1.1 - AMENDED DEFINITIONS. Section 1.1 of the Loan
Agreement is amended by deleting the current versions of the following
definitions and substituting the following versions of such definitions
in appropriate alphabetical order:
MATURITY DATE: the earlier of (i) (A) if the Aquis Group 11%
Convertible Debenture has been indefeasibly paid in full and marked
"canceled" on or before July 1, 2001, December 31, 2003 or (B)
otherwise, July 31, 2001 and (ii) the date on which Borrower's
Obligations are accelerated pursuant to this Loan Agreement.
OPERATING CASH FLOW: for any period, without
duplication, the net income of Borrower for such period:
(i) PLUS the sum of the following, to the
extent deducted in determining such net income for
such period:
(A) losses from sales,
exchanges and other dispositions of Property
not in the ordinary course of business;
(B) interest paid or
accrued on Indebtedness, including, without
limitation, interest on Capitalized Leases
that is imputed in accordance with GAAP;
(C) depreciation and
amortization of assets during such period;
(D) income taxes which are
accrued, but not paid, during such period;
and
(E) expenses incurred in
connection with Trade Out Transactions;
(F) obligations incurred in
connection with the Xxxxxxxx Settlement
Agreement;
(G) non-cash consideration
incurred in connection with the Catania
Employment Agreement; and
(H) non-cash consideration
incurred in connection with the issuance of
an aggregate of 180,000 shares of common
stock of Aquis Group on December 15, 1999 to
the members of the board of the directors of
Aquis Group;
(ii) MINUS the sum of the following, to the
extent included in determining such net income for
such period:
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(A) gains from sales,
exchanges and other dispositions of Property
or other extraordinary gains not in the
ordinary course of business;
(B) proceeds of Business
Insurance; and
(C) revenue received in
connection with Trade Out Transactions;
(iii) PLUS, for any such period occurring
wholly or partly in 1999, an amount which is equal to
the aggregate of $1,692,000 recorded in 1999 related
to various agreed upon one-time costs of abandoned
business combinations to the extent that any such
amounts fell within the subject period being tested.
(b) SECTION 1.1 - ADDITIONAL DEFINITIONS. Section 1.1 of the
Loan Agreement is amended by inserting the following definitions in
appropriate alphabetical order:
XXXXXXXX SETTLEMENT AGREEMENT: the Settlement
Agreement and Release and Waiver of Claims dated as of April
4, 2000 in the matter of the arbitration between Aquis Group
and Xxxx X. Xxxxxxxx.
AQUIS GROUP 11% CONVERTIBLE DEBENTURE: the 11%
Convertible Debenture dated April ___, 2000 issued by Aquis
Group payable to AMRO International, S.A. or permitted assigns
in the original principal amount of $2,000,000.
AQUIS GROUP 11% CONVERTIBLE DEBENTURE TRANSACTION:
collectively, the transactions contemplated by the Aquis Group
11% Convertible Debenture.
AQUIS GROUP DEBT/EQUITY TRANSACTION: collectively,
the transactions contemplated by the Aquis Group Debt/Equity
Transaction Instruments.
AQUIS GROUP DEBT/EQUITY TRANSACTION INSTRUMENTS:
collectively, the following documents, each dated April ___,
2000, each among Aquis Group and the other parties signatories
thereto: the Common Stock Purchase Agreement, Stock Purchase
Warrant, Loan Agreement, the Aquis Group 11% Convertible
Debenture and all other documents, instruments and agreements
executed or delivered in connection with any of the foregoing.
CATANIA EMPLOYMENT AGREEMENT: the Employment
Agreement dated as of January 4, 2000 between Aquis Group and
Xxxx X. Xxxxxxx, as amended by the Amendment to Employment
Agreement dated as of April 7, 2000 between such parties.
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FIRST AMENDMENT: the First Amendment to Loan
Instruments dated as of April __, 2000 by and between Borrower
and FINOVA.
(c) SECTION 2.2.1. Subsection 2.2.1 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"2.2.1 INTEREST RATE ON EXISTING PRINCIPAL
BALANCE. Except as provided in Section 2.5, the Base Rate
Portion shall bear interest at the Base Rate in effect from
time to time plus the Applicable Margin in effect for the
applicable period and each LIBOR Loan shall bear interest at
the applicable LIBOR Rate plus the Applicable Margin in effect
for the applicable period. As used in this Loan Agreement, the
term "APPLICABLE MARGIN" for any period shall be determined by
Agent on the first day of such period (the "DETERMINATION
DATE") and shall mean with respect to the Base Rate Portion
and each LIBOR Loan the per annum percentage rate set forth
below:
(i) 1.75% per annum with respect to the Base
Rate Portion and 4.50% per annum with respect to each LIBOR
Loan (A) during the period commencing on the Closing Date
through (1) the date Borrower's Obligations are paid and
performed in full if the Special Prepayment Payment Date
occurs on or before April 30, 2000 and (2) April 30, 2000 if
the Special Prepayment Payment Date does not occur on or
before April 30, 2000 and (B) during the period commencing on
the Special Prepayment Payment Date through the date
Borrower's Obligations are paid and performed in full;
(ii) if the Special Prepayment Payment Date
does not occur on or before April 30, 2000, 2.25% per annum
with respect to the Base Rate Portion and 5.00% per annum with
respect to each LIBOR Loan during the period commencing May 1,
2000 through the earlier to occur of (A) May 31, 2000 and (B)
the Special Prepayment Payment Date;
(iii) if the Special Prepayment Payment Date
does not occur on or before May 31, 2000, 2.75% per annum with
respect to the Base Rate Portion and 5.50% per annum with
respect to each LIBOR Loan during the period commencing June
1, 2000 through the earlier to occur of (A) June 30, 2000 and
(B) the Special Prepayment Payment Date;
(iv) if the Special Prepayment Payment Date
does not occur on or before June 30, 2000, 3.25% per annum
with respect to the Base Rate Portion and 6.00% per annum with
respect to each LIBOR Loan during the period commencing July
1, 2000 through the earlier to occur of (A) July 31, 2000 and
(B) the Special Prepayment Payment Date; and
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(v) if the Special Prepayment Payment Date
does not occur on or before July 31, 2000, 3.75% per annum
with respect to the Base Rate Portion and 6.50% per annum with
respect to each LIBOR Loan during the period commencing August
1, 2000 through the Special Prepayment Payment Date."
(d) SECTION 2.2.2. Subsection 2.2.2 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"2.2.2 INTEREST RATE ON SOURCEONE PRINCIPAL BALANCE.
Except as provided in Section 2.5, the SourceOne Principal Balance
shall bear interest at the Base Rate in effect from time to time plus
the SourceOne Applicable Margin in effect for the applicable period. As
used in this Loan Agreement, the term "SOURCEONE APPLICABLE MARGIN" for
any period shall be determined by Agent on the first day of such period
(the "SOURCEONE DETERMINATION DATE") and shall mean with respect to the
SourceOne Principal Balance:
(i) 4.00% per annum during the period from
the Closing Date to the date (the "STEP-DOWN DATE") which is
545 days after the Closing Date;
(ii) 1.75% per annum with respect to the
SourceOne Base Rate Portion and 4.50% per annum with respect
to each SourceOne LIBOR Loan during the period from and after
the Step-Down Date if (A) the Special Prepayment Payment Date
occurs prior to April 30, 2000 and (B) no Event of Default has
occurred since the Closing Date with respect to which Agent
has given notice to Borrower; and
(iii) the Applicable Margin with respect to
the Existing Indebtedness during the period from and after the
Step-Down Date if (A) the Special Prepayment Payment Date does
not occur prior to April 30, 2000 or (B) an Event of Default
occurred during the period from the Closing Date to the
Step-Down Date with respect to which Agent has given notice to
Borrower.
Borrower may not elect to have any portion of the SourceOne
Principal Balance bear interest at a rate determined by
reference to the LIBOR Rate prior to the Step-Down Date."
(e) SECTION 2.7. Section 2.7 is deleted in its entirety and
the following is substituted therefor:
"2.7 FEES.
2.7.1 SOURCEONE LOAN FEE. Borrower paid to
Lenders a loan fee in the amount of $100,000 (the
"SourceOne Loan Fee") upon the Closing. The SourceOne
Loan Fee was fully earned as of the Closing.
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2.7.2 MODIFICATION FEE. Borrower shall pay
to Lenders a modification fee in the amount of
$200,000 on the date of the First Amendment, which
fee shall be in consideration of FINOVA's agreement
to enter into the First Amendment.
2.7.3 JUNE 30, 2000 FEE. If the Senior
Leverage Ratio as of June 30, 2000 is equal to or
greater than 4.00, Borrower shall pay to FINOVA a fee
of $75,000 on such date.
2.7.4 SEPTEMBER 30, 2000 FEE. If the Senior
Leverage Ratio as of September 30, 2000 is equal to
or greater than 4.90, Borrower shall pay to FINOVA a
fee of $100,000 on such date. If the Senior Leverage
Ratio as of September 30, 2000 is less than 4.90 but
equal to or greater than 3.75, Borrower shall pay to
FINOVA a fee of $75,000 on such date.
2.7.5 DECEMBER 31, 2000 FEE. If the Senior
Leverage Ratio as of December 31, 2000 is equal to or
greater than 4.20, Borrower shall pay to FINOVA a fee
of $100,000 on such date. If the Senior Leverage
Ratio as of December 31, 2000 is less than 4.20 but
greater than or equal to 3.50, Borrower shall pay to
FINOVA a fee of $75,000 on such date.
2.7.6 MARCH 31, 2001 FEE. If the Senior
Leverage Ratio as of March 31, 2001 is equal to or
greater than 3.25, Borrower shall pay to FINOVA a fee
of $75,000 on such date.
2.7.7 JUNE 30, 2001 FEE. If the Senior
Leverage Ratio as of June 30, 2001 is equal to or
greater than 3.25, Borrower shall pay to FINOVA a fee
of $75,000 on such date."
(f) SECTION 6.16. Section 6.16 is added to the Loan Agreement
immediately following 6.15:
"6.16 PREPAYMENT OF PROCEEDS OF AQUIS GROUP 11%
CONVERTIBLE DEBENTURE. Prepay the Principal Balance by not
less than $1,250,000 concurrently with the consummation of the
Aquis Group 11% Convertible Debenture Transaction."
(g) SECTION 6.17. Section 6.17 is added to the Loan Agreement
immediately following 6.16:
"6.17 REQUIRED SUNSTAR TRANSFER. If the Senior
Leverage Ratio as of June 30, 2000 equals or exceeds 4.00, (i)
consummate the SunStar Transfer on or before October 31, 2000
on terms and conditions, including cash purchase price
reasonably acceptable to FINOVA and (ii) apply the SunStar
Proceeds to repay Borrower's Obligations."
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(h) SECTION 7.18. Subsection 7.18 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"7.18 SENIOR LEVERAGE RATIO. (A) Provided the Special
Prepayment has been paid by any date set forth below, permit the Senior
Leverage Ratio as of such date to be greater than the amount set forth
opposite such date:
Date Amount
---- ------
March 31, 2000 4.91
June 30, 2000 5.30
September 30, 2000 5.59
December 31, 2000 5.16
March 31, 2001 5.06
June 30, 2001 5.00
September 30, 2001 3.25
December 31, 2001 3.00
March 31, 2002 2.75
June 30, 2002 2.75
September 30, 2002 2.75
December 31, 2002 2.50
March 31, 2003 2.50
June 30, 2003 2.50
September 30, 2003 2.50
December 31, 2003 2.50
(B) If the Special Prepayment has not been paid by any date set forth
below, permit the Senior Leverage Ratio as of such date to be greater
than the amount set forth opposite such date:
Date Amount
---- ------
March 31, 2000 4.91
June 30, 2000 5.54
September 30, 2000 5.85
December 31, 2000 5.41
March 31, 2001 5.30
June 30, 2001 5.25
September 30, 2001 3.25
December 31, 2001 3.00
March 31, 2002 2.75
June 30, 2002 2.75
September 30, 2002 2.75
December 31, 2002 2.50
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March 31, 2003 2.50
June 30, 2003 2.50
September 30, 2003 2.50
December 31, 2003 2.50"
(i) SECTION 7.19. Section 7.19 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"7.19 SENIOR DEBT SERVICE COVERAGE RATIO. Permit the
Senior Debt Service Coverage Ratio as of any date set forth below to be
less than the amount set forth below opposite such date:
Date Amount
---- ------
March 31, 2000 2.00
June 30, 2000 1.80
September 30, 2000 1.61
December 31, 2000 1.64
March 31, 2001 1.64
June 30, 2001 1.64
September 30, 2001 2.25
December 31, 2001 2.25
March 31, 2002 2.00
June 30, 2002 2.00
September 30, 2002 2.00
December 31, 2002 2.00
March 31, 2003 1.90
June 30, 2003 1.90
September 30, 2003 1.90
December 31, 2003 1.90"
(j) SECTION 7.20. Subsection 7.20 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"7.20 TOTAL LEVERAGE RATIO. (A) Provided the Special
Prepayment has been made by any date set forth below, permit the Total
Leverage Ratio as of such date to be greater than the amount set forth
opposite such date:
Date Amount
---- ------
March 31, 2000 5.15
June 30, 2000 5.50
September 30, 2000 5.80
December 31, 2000 5.34
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March 31, 2001 5.25
June 30, 2001 5.15
September 30, 2001 3.50
December 31, 2001 3.25
March 31, 2002 3.00
June 30, 2002 3.00
September 30, 2002 3.00
December 31, 2002 2.75
March 31, 2003 2.75
June 30, 2003 2.75
September 30, 2003 2.75
December 31, 2003 2.75
(B) If the Special Prepayment has not been paid by any date set forth
below, permit the Total Leverage Ratio as of such date to be greater
than the amount set forth opposite such date:
Date Amount
---- ------
March 31, 2000 5.15
June 30, 2000 5.75
September 30, 2000 6.06
December 31, 2000 5.59
March 31, 2001 5.48
June 30, 2001 5.43
September 30, 2001 3.50
December 31, 2001 3.25
March 31, 2002 3.00
June 30, 2002 3.00
September 30, 2002 3.00
December 31, 2002 2.75
March 31, 2003 2.75
June 30, 2003 2.75
September 30, 2003 2.75
December 31, 2003 2.75"
(k) SUBSECTION 8.1.2. Subsection 8.1.2 of the Loan Agreement
is deleted in its entirety and the following is substituted therefor:
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"8.1.2 BREACH OF COVENANTS.
(a) If Borrower shall fail to observe or
perform any covenant or agreement made by Borrower contained
in Section 6.1, 6.2, 6.5, 6.6, 6.9, 6.10, 6.11, 6.13, 6.14,
6.16 or 6.17 or in Article VII; or
(b) If any Obligor shall fail to observe or
perform any covenant or agreement (other than those referred
to in subparagraph (a) or (b) above or specifically addressed
elsewhere in this Section 8.1) made by such Person in any of
the Loan Instruments to which such Person is a party, and such
failure shall continue for a period of 30 days after written
notice of such failure is given by Lenders."
(l) SECTION 8.1.4. Section 8.1.4 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"8.1.4 DEFAULT UNDER OTHER INDEBTEDNESS FOR BORROWED
MONEY. If (i) Borrower, Aquis Group or, prior to the SunStar
Transfer Date, SunStar, at any time shall be in default (as
principal or guarantor or other surety) in the payment of any
principal of or premium or interest on any Indebtedness for
Borrowed Money (other than Borrower's Obligations) beyond the
grace period, if any, applicable thereto and the aggregate
amount of such payments then in default beyond such grace
period shall exceed $100,000, (ii) any default shall occur in
respect of any issue of Indebtedness for Borrowed Money of
Borrower (other than Borrower's Obligations), Aquis Group or,
prior to the SunStar Transfer Date, SunStar, outstanding in a
principal amount of at least $200,000, or in respect of any
agreement or instrument relating to any such issue of
Indebtedness for Borrowed Money, and such default shall
continue beyond the grace period, if any, applicable thereto,
or (iii) Aquis Group shall be in default under the Aquis Group
Debt/Equity Transaction Instruments."
(m) SECTION 8.1.5. Section 8.1.5 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:
"8.1.5 BANKRUPTCY.
(a) If Borrower, Aquis Group, or, prior to
the SunStar Transfer Date, SunStar, shall (i)
generally not be paying its debts as they become due,
(ii) file, or consent, by answer or otherwise, to the
filing against it of a petition for relief or
reorganization or arrangement or any other petition
in bankruptcy or insolvency under the laws of any
jurisdiction, (iii) make an assignment for the
benefit of creditors, (iv) consent to the appointment
of a custodian, receiver, trustee or other officer
with similar powers for it or for any substantial
part of its Property, or (v) be adjudicated
insolvent.
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(b) If any Governmental Body of competent
jurisdiction shall enter an order appointing, without
consent of Borrower, Aquis Group, or, prior to the
SunStar Transfer Date, SunStar, a custodian,
receiver, trustee or other officer with similar
powers with respect to it or with respect to any
substantial part of its Property, or if an order for
relief shall be entered in any case or proceeding for
liquidation or reorganization or otherwise to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up
or liquidation of Borrower, Aquis Group, or prior to
the SunStar Transfer Date, SunStar of any petition
for any such relief shall be filed against it and
such petition shall not be dismissed or stayed within
60 days."
(n) SECTION 8.1.12. Section 8.1.12 is added to the Loan
Agreement immediately following 8.1.11:
"8.1.12 CONTRIBUTION OF PROCEEDS OF AQUIS GROUP 11%
CONVERTIBLE DEBENTURE. If Aquis Group fails to contribute to
Borrower the full amount of proceeds of the Aquis Group 11%
Convertible Debenture by April 15, 2000."
4. CONDITIONS TO EFFECTIVENESS. The effectiveness of this First
Amendment shall be subject to the satisfaction of all of the following
conditions in a manner, form and substance reasonably satisfactory to FINOVA:
(a) DELIVERY OF DOCUMENTS. The following shall have been
delivered to FINOVA, each duly authorized and executed:
(1) this First Amendment;
(3) a good standing certificate for Borrower from the
Secretary of State of Delaware;
(3) a good standing certificate for Borrower from the
Secretary of State of Arizona;
(4) certified copies of (i) any amendments to the
articles of incorporation of Borrower since January 31, 2000,
certified by the Secretary of State of Delaware; (ii) any
amendments to the by-laws of Borrower since January 31, 2000,
certified as of the date of this First Amendment by the
secretary of Borrower and (iii) resolutions adopted by the
board of directors of Borrower authorizing the execution and
delivery of this First Amendment;
(5) certified copies or executed originals of the
fully executed Aquis Group Debt/Equity Transaction
Instruments;
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(6) such other documents, agreements, opinions and
consents as FINOVA reasonably may request.
(c) OPINION OF COUNSEL. Agent shall have received an opinion
of counsel dated the date hereof from Xxxxxxxx Xxxxxxxxx Professional
Corporation, in such form and covering such matters as Agent reasonably
may require.
(d) MODIFICATION FEE. FINOVA shall have received a
modification fee in the amount of $200,000, due and payable upon the
date of this Fist Amendment, in consideration of the agreement of
Lenders to enter into this First Amendment. Such modification fee shall
be deemed to be fully earned as of the date hereof.
(e) CONSUMMATION OF AQUIS GROUP 11% CONVERTIBLE DEBENTURE
TRANSACTION. (1) The $2,000,000 purchase price of the Aquis Group 11%
Convertible Debenture shall have been transferred to the Escrow Agent,
as defined in the Escrow Agreement dated as of March 31, 1999 (the
"Escrow Agreement") by and among Aquis Group, the lenders signatory
thereto and Xxxxxxx Xxxxxx & Green, P.C. and (2) the Escrow Agent shall
have provided to FINOVA written confirmation of (A) the receipt by the
Escrow Agent of such purchase price and (B) the satisfaction in full of
all conditions precedent to the disbursement from the escrow account of
such purchase price.
Upon the satisfaction of conditions set forth in this Paragraph 4, this
First Amendment shall be effective as of the date set forth in the preamble
hereto and such date shall be referred to herein as the "Effective Date."
5. WAIVER. From and after the Effective Date, FINOVA waives its rights
to pursue its remedies on account of any Event of Default under Section 7.18 of
the Loan Agreement arising out of Borrower's permitting the Senior Leverage
Ratio to exceed 4.00 for the quarter ending December 31, 1999, provided that,
after giving effect to the definition of "Operating Cash Flow" as set forth in
this First Amendment, the Senior Leverage Ratio for the quarter ending December
31, 1999 as reported in Borrower's audited financial statements shall not exceed
4.50. The foregoing waiver shall not be deemed a waiver of any other Event of
Default which has occurred or hereafter may occur under the Loan Agreement, as
amended by this First Amendment. Except as specifically set forth in this
Xxxxxxxxx 0, XXXXXX reserves and preserves all of its rights and remedies under
the Loan Agreement, as amended by this First Amendment.
6. OTHER EVENTS OF DEFAULT. FINOVA represents to Borrower that, except
for the Event of Default waived in Section 5 of this First Amendment, FINOVA has
no actual knowledge as of the date hereof of the existence of any Event of
Default or Incipient Default. The foregoing sentence is a statement of fact of
the actual knowledge of FINOVA as of the date hereof and shall not be deemed to
constitute a waiver of any Event of Default or Incipient Default which may exist
as of the date hereof of which FINOVA has no actual knowledge. FINOVA reserves
and preserves all of its rights and remedies under the Loan Agreement, as
amended by this First Amendment, with respect to any
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other Event of Default or Incipient Default of which FINOVA has no actual
knowledge as of this date.
7. REFERENCES; SATISFACTION OF CONDITIONS. From and after the Effective
Date all terms used in the Loan Instruments which are defined in the Loan
Agreement shall be deemed to refer to such terms as amended by this First
Amendment.
8. REPRESENTATIONS AND WARRANTIES. Borrower hereby confirms to Agent
and Lenders that the representations and warranties set forth in the Loan
Instruments, as amended by this First Amendment, to which any Obligor is a party
are true and correct in all material respects as of the date hereof, and shall
be deemed to be remade as of the date hereof. Borrower represents and warrants
to Agent and Lenders that (i) Borrower has full power and authority to execute
and deliver this First Amendment and to perform its obligations hereunder, (ii)
upon the execution and delivery hereof, this First Amendment will be valid,
binding and enforceable upon Borrower in accordance with its terms, (iii) the
execution and delivery of this First Amendment does not and will not contravene,
conflict with, violate or constitute a default under (A) its articles of
incorporation or by-laws or (B) any applicable law, rule, regulation, judgment,
decree or order or any agreement, indenture or instrument to which Borrower is a
party or is bound or which is binding upon or applicable to all or any portion
of Borrower's Property and (iv) as of the date hereof no Incipient Default or
Event of Default exists, except as waived in Paragraph 5 hereof.
9. COSTS AND EXPENSES; MODIFICATION FEE. Borrower agrees to reimburse
Agent for all fees and expenses incurred in the preparation, negotiation and
execution of this First Amendment and the consummation of the transactions
contemplated hereby, including, without limitation, the fees and expenses of
counsel for Agent. Borrower agrees to pay a $200,000 modification fee on the
date of this First Amendment in consideration for FINOVA's agreement to enter
into this First Amendment.
10. NO FURTHER AMENDMENTS; RATIFICATION OF LIABILITY. Except as amended
hereby, the Loan Agreement and each of the other Loan Instruments shall remain
in full force and effect in accordance with its respective terms. Borrower
hereby ratifies and confirms its liabilities, obligations and agreements under
the Loan Agreement and the other Loan Instruments, all as amended by this First
Amendment, and the Liens created thereby, and acknowledges that (i) it has no
defenses, claims or set-offs to the enforcement by Agent and Lenders of such
liabilities, obligations and agreements, (ii) Agent and Lenders have fully
performed all obligations to Borrower which any such Person may have had or has
on and as of the date hereof and (iii) other than as specifically set forth
herein, neither Agent nor any Lender waives, diminishes or limits any term or
condition contained in the Loan Agreement or the other Loan Instruments. Agent
and Lenders' agreement to the terms of this First Amendment or any other
amendment of the Loan Agreement shall not be deemed to establish or create a
custom or course of dealing among Agent, Lenders and Borrower. The Loan
Instruments, as amended by this First Amendment, contain the entire agreement
among Agent, Lenders and Borrower with respect to the transactions contemplated
hereby.
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11. COUNTERPARTS. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute one and the same instrument.
12. FURTHER ASSURANCES. Borrower covenants and agrees that it will at
any time and from time to time do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged and delivered, all such further acts,
documents and instruments as reasonably may be required by Agent and Lenders in
order to effectuate fully the intent of this First Amendment.
13. SEVERABILITY. If any term or provision of this First Amendment or
the application thereof to any party or circumstance shall be held to be
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, the validity, legality and enforceability of the remaining terms
and provisions of this First Amendment shall not in any way be affected or
impaired thereby, and the affected term or provision shall be modified to the
minimum extent permitted by law so as most fully to achieve the intention of
this First Amendment.
14. CAPTIONS. The captions in this First Amendment are inserted for
convenience of reference only and in no way define, describe or limit the scope
or intent of this First Amendment or any of the provisions hereof.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, this First Amendment has been executed and
delivered by each of the parties hereto by a duly authorized officer of each
such party on the date first set forth above.
AQUIS WIRELESS COMMUNICATIONS,
INC., a Delaware corporation
By: /s/ XXXX X. XXXXXXX
----------------------------------
Xxxx X. Xxxxxxx
President
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By: s/s XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
Vice President
15
