Exhibit 10.47(f)
AMENDMENT NO. 5
TO
AMENDED AND RESTATED LOAN AGREEMENT
Amendment No. 5, dated as of February 28, 2001, 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 Data Submission Systems, Inc., a Delaware corporation ("Borrower").
WHEREAS, Lender has advanced to Borrower $1,800,000 of the Initial
Commitment (as hereinafter defined) and $3,000,000 of a $3,000,000 Bridge
Commitment (as hereinafter defined) under the Loan Agreement;
WHEREAS, the accrued and unpaid interest under the Loan Agreement,
aggregating $613,739 on the date hereof (the "Accrued Interest"), 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, which serves 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");
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, (ii) the Bridge Commitment, and (iii)
the Additional Commitment. "Initial Commitment" shall mean up to One
Million Eight Hundred Thousand Dollars ($1,800,000). "Bridge Commitment"
shall mean up to Three Million Dollars ($3,000,000). "Additional
Commitment" shall mean up to Seven Hundred Thousand Dollars ($700,000).
"Note" - the Initial Note, the Amended and Restated Bridge Note, and
the Additional Note, each as defined in subsection 2.4(a) hereof.
2. Section 2.4(a) 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
"Initial 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 "Amended and
Restated Bridge Note"), dated as of the date thereof, payable to the order
of National, in a principal amount equal to the Bridge Commitment and
otherwise duly completed. The Loans in respect of the Additional
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 L annexed hereto
(the "Additional Note"), dated as of the date thereof, payable to the
order of National, in a principal amount equal to the Additional
Commitment and otherwise duly completed.
3. 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, 2002. 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, 2002. 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, 2002.
2. Exhibit L to the Loan Agreement is hereby replaced by Exhibit L
attached hereto. Exhibit M to the Loan Agreement is hereby deleted in its
entirety.
3. National hereby waives breaches existing on the date hereof of
covenants of Borrower set forth in Sections 6.9, 7.1(b), 7.5 and 7.11 of the
Loan Agreement, without prejudice to its rights arising from breaches of any
covenants of the Loan Agreement, including without limitation the mentioned
covenants, from and after the date hereof.
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 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.
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. 5 shall not
affect any of the rights of Lender with respect thereto.
-2-
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. 5 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. 5 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. 5 as of
the date first above set forth.
NATIONAL WIRELESS HOLDINGS INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Title: Principal Executive Officer
AGREED:
ELECTRONIC DATA SUBMISSION SYSTEMS, INC.
By: /s/ Xxx X. English
Title: Chief Operating Officer
-3-
