Exhibit 10.1
THIRD AMENDMENT
AND
WAIVER
TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
This Third Amendment and Waiver to
Third Amended and Restated Loan and Security Agreement (the
“Amendment”) is entered into as of July 27, 2005,
by and between COMERICA BANK, successor by merger with COMERICA
BANK – CALIFORNIA (“Bank”) and INPHONIC, INC.
(“InPhonic”), SIMIPC ACQUISITION CORP.
(“SimIpc”), and STAR NUMBER, INC. (“Star”
and collectively within InPhonic and SimIpc, the
“Borrowers”).
RECITALS
Borrowers and Bank are parties to
that certain Third Amended and Restated Loan and Security Agreement
dated as of August 7, 2003 (as amended from time to time,
including without limitation by that certain Waiver to Third
Amended and Restated Loan and Security Agreement dated
November 17, 2003, that certain letter from Bank to Borrowers
dated March 18, 2004, that certain waiver letter from Bank to
Borrowers dated May 31, 2004, that certain Joinder Agreement
and First Amendment to Third Amended and Restated Loan and Security
Agreement dated June 2, 2004, that certain Release Letter
dated July 30, 2004 (the “Joinder Agreement”),
that certain Second Amendment to Third Amended and Restated Loan
and Security Agreement dated August 2, 2004, and that certain
waiver letter from Bank to Borrowers dated May 5, 2005,
together with any related agreements, the “Agreement”).
Cellular Choices, LLC was previously added as a Borrower to the
Agreement in the Joinder Agreement, but has been subsequently
removed as a Borrower to the Agreement. Hereinafter, all
indebtedness owing by Borrowers to Bank shall be referred to as the
“Indebtedness.” The parties desire to amend the
Agreement in accordance with the terms of this
Amendment.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
AGREEMENT
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I.
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Incorporation by Reference
. The Recitals and the documents referred to
therein are incorporated herein by this reference. Except as
otherwise noted, the terms not defined herein shall have the
meaning set forth in the Agreement.
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A.
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Borrowers have
requested and Bank hereby agrees to waive the following provisions
within the following Sections of the Agreement for the period of
time beginning May 6, 2005 and ending July 27,
2005:
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Section 6.2(a)(1): as soon as
available, but in any event within 30 days after each calendar
month, a company prepared consolidated and consolidating balance
sheet and income statement covering such Borrower’s
operations during such period, in a form acceptable to Bank and
certified by a Responsible Officer.
Section 6.2(a)(7): Borrowers
shall deliver to Bank within 30 days of after the end of the month
a Borrowing Base Certificate signed by a Responsible Officer in
substantially the form of Exhibit F hereto, together with aged
listing of accounts receivable and account payable and inventory
reports.
Section 6.2(b): Within 30 days
after the last day of each month, Borrowers shall deliver to Bank
with monthly financial statement a Compliance Certificate signed by
a Responsible Officer in substantially the form of Exhibit D
hereto.
-1-
Section 6.7(a): Minimum EBITDA
to be determined on or before 12/15/04 based on Borrowers’
financial projections; such projections to be delivered to Bank not
later than 12/1/04.
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B.
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Bank hereby
consents to and hereby waives any violation of Section 7.3 of
the Agreement caused by Borrowers acquisitions of A-1 Wireless, VMC
Satellite, and FONcentral.com.
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C.
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The Bank will
waive the provisions referenced above subject to the terms and
conditions of this Amendment.
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D.
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Other than the
forgoing provisions waived hereby, the Bank confirms that to the
actual knowledge of the representatives of the Bank who have
primary responsibi
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