EXHIBIT 99.4
SCHEDULE "D"
FORM OF AGREEMENT APPOINTING THE AGENT
AGENCY AGREEMENT
THIS AGREEMENT is made effective as of this o day of October, 2001.
b e t w e e n:
[PURCHASER], of o, o
(hereinafter called "Lender")
OF THE FIRST PART;
- and -
XXXXXXX X. XXXXX, of the City of Salt Spring Island
in the Province of British Columbia
(hereinafter called the "Agent")
OF THE SECOND PART;
WHEREAS the Lender wishes to appoint the Agent as agent for the benefit
of the Lender under the Security Documents (as such term is defined herein);
AND WHEREAS capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Subscription Agreement (as such
term is defined herein);
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
premises and the terms and conditions herein contained, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereto agree with each other as follows:
1. Defined Terms.
"Agency Agreement" means this agency agreement entered into between the
Lender and the Agent;
"Agent" means Xxxxxxx X. Xxxxx, acting as agent for the benefit of the
Lenders under the Security Documents;
"Claim" means any claim of any nature whatsoever including any demand,
cause of action, suit or proceeding;
"General Security Agreements" means the general security agreements
entered into between the Guarantor and the Agent and the Company and
the Agent;
"Guarantee Agreement" means the guarantee agreement entered into
between the Guarantor and the Agent;
"Guarantor" means WaveRider Communications (Canada) Inc.;
"Holders"means the Lender and all other Persons from time to time
holding any of the Notes;
"Lenders" means those persons who subscribe for the Units under the
Offering;
"Loss" means any loss whatsoever, whether direct or indirect, including
expenses, costs, damages, judgments, penalties, awards, assessments,
fines and all fees, disbursements and expenses of counsel, experts and
consultants;
"Notes" means the 8% Series A promissory notes of the Company;
"Person" means an individual, corporation, partnership, unincorporated
association, unincorporated syndicate, ____ unincorporated ____
organization, ____ trust, trustee, executor, administrator, or other
legal representative;
"Required Holders" means, at any time, Holders which are then in
compliance with their obligations hereunder (as determined by the
Agent) and holding Notes representing more than 50% of the aggregate
outstanding principal amount of all outstanding Notes;
"Security Documents" means the Guarantee Agreement and the General
Security Agreements; and
"Subscription Agreement" means the subscription agreements entered into
between each of the Lenders and the Company.
2. Appointment of Agent. The Lender hereby designates and appoints the
Agent to act as specified herein and in the Security Documents, and
hereby authorizes the Agent as the agent for the Lender, to take such
action on its behalf under the provisions of this Agency Agreement and
the Security Documents and to exercise such powers and perform such
duties as are expressly delegated by the terms of this Agency Agreement
and the Security Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere herein and in the Security Documents, the Agent
shall not have any duties or responsibilities, except those expressly
set forth herein and therein, or any fiduciary relationship with the
Lender or any other Person, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into
this Agency Agreement or any Security Documents, or shall otherwise
exist against the Agent. The provisions of this section are solely for
the benefit of the Agent and the Lender, and neither the Company nor
the Guarantor shall have any rights as a third party beneficiary of the
provisions hereof. In performing its functions and duties under this
Agency Agreement and the Security Documents, the Agent shall act solely
as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation or relationship of agency or trust with or
for the Company or the Guarantor or any of their respective Affiliates.
3. Delegation of Duties. The Agent may execute any of its duties hereunder
or under the other Security Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
4. Exculpatory Provisions. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection herewith or in connection with
any Security Documents (except for its or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to
any of the Holders for any recitals, statements, representations or
warranties made by the Company or the Guarantor contained herein or in
any Security Documents or in any certificate, report, document,
financial statement or other written or oral statement referred to or
provided for in, or received by an Agent under or in connection
herewith or in connection with the Security Documents, or
enforceability or sufficiency of this Agency Agreement or any Security
Documents, or for any failure of the Company or the Guarantor to
perform its obligations hereunder or thereunder. The Agent shall not be
responsible to any Secured Party for the effectiveness, genuineness,
validity, enforceability, collectability or sufficiency of this Agency
Agreement, or any Security Documents or for any representations,
warranties, recitals or statements made herein or therein or made by
the Company or the Guarantor in any written or oral statement or in any
financial or other statements, instruments, reports, certificates or
any other documents in connection herewith or therewith furnished or
made by the Agent to the Holders or by or on behalf of the Company or
the Guarantor to the Agent or any other Secured Party or be required to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, provisions, covenants or agreements contained herein
or therein or as to the use of the proceeds of the Notes or of the
existence or possible existence of any Event of Default (as such term
is defined in the certificates representing the Notes) or to inspect
the property, books or records of the Company or the Guarantor or any
of their respective Affiliates. The Agent is not a trustee for any
Holders and owes no fiduciary duty to any Holders.
5. Reliance on Communications. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company or the Guarantor, independent
accountants and other experts selected by the Agent with reasonable
care). The Agent may deem and treat each Lender as the owner of its
interests under the Notes for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with
the Agent. The Agent shall be fully justified in failing or refusing to
take any action under this Agency Agreement or under any Security
Documents unless it shall first receive such advice or concurrence as
it deems appropriate from the Required Holders, or it shall first be
indemnified to its satisfaction by the Holders against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder or
under any Security Documents in accordance with a request of the
Required Holders and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Holders (including
their successors and assigns).
6. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default unless the Agent has
received notice from a Holder or the Company or the Guarantor referring
to the Security Document, describing such Event of Default and stating
that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall give prompt notice thereof to
all of the Holders. The Agent shall take such action with respect to
such Event of Default as shall be reasonably directed by the Required
Holders.
7. Non-Reliance on Agent and Other Holders. The Lender expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Agent or any
affiliate thereof hereinafter taken, including any review of the
affairs of the Company or the Guarantor or any of their respective
Affiliates, shall be deemed to constitute any representation or
warranty by the Agent to any Holder. The Lender represents to the Agent
that it has, independently and without reliance upon the Agent or any
other Holder, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into
the business, assets, operations, property, financial and other
conditions, prospects and creditworthiness of the Company, the
Guarantor or their respective Affiliates and made its own decision to
make its advances hereunder and enter into this Agency Agreement. The
Lender also represents that it will, independently and without reliance
upon the Agent or any other Holder, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not
taking action under this Agency Agreement, and to make such
investigation as it deems necessary to inform itself as to the
business, assets, operations, property, financial and other conditions,
prospects and creditworthiness of the Company, the Guarantor and their
respective Affiliates. Except for notices, reports and other documents
expressly required to be furnished to the Holders (or any of them) by
the Agent hereunder or under any Security Document, the Agent shall not
have any duty or responsibility to provide any Holder with any credit
or other information concerning the business, operations, property,
financial or other conditions, prospects or creditworthiness of the
Company or the Guarantor or any of their respective Affiliates which
may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
8. Indemnification.
(1) The Lender agrees to indemnify the Agent in its capacity as
such (to the extent not reimbursed by the Company or the
Guarantor and without limiting the obligation of the Company
or the Guarantor to do so), rateably according to the
aggregate outstanding balance owing under the Notes, from and
against any and all Claims and Losses which may at any time
(including without limitation at any time following the final
payment of all of the obligations under the Notes and under
the other Security Documents) be imposed on, incurred by or
asserted against the Agent in its capacity as such in any way
relating to or arising out of this Agency Agreement or the
Security Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated
hereby or thereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided
that no Holder shall be liable for the payment of any portion
of such Claims or Losses resulting from the gross negligence
or willful misconduct of the Agent. If any indemnity furnished
to the Agent for any purpose shall, in the opinion of the
Agent, be insufficient or become impaired, the Agent may call
for additional indemnity from the Holders and cease, or not
commence, to do the acts indemnified against until such
additional indemnity is furnished.
(2) The agreements in this Section shall survive the repayment of
the Notes and all other obligations under the Security
Documents.
9. Agent in its Individual Capacity. The Agent and its Affiliates may
generally engage in any kind of business with the Company or the
Guarantor or their respective Affiliates as though the Agent were not
an agent hereunder. With respect to any Notes held by and all
obligations of the Company and the Guarantor hereunder and under the
Security Documents, the Agent shall have the same rights and powers as
any Holder and may exercise the same as though it were not an Agent,
and the terms "Holder" and "Holders" shall include the Agent in its
individual capacity.
10. Successor Agents. The Agent may, at any time, resign upon 45 days'
written notice to the Holders and the Company, and be removed with or
without cause by the Required Holders upon 30 days' written notice to
the Agent and the Company. Upon any such resignation or removal, the
Required Holders shall have the right to appoint a successor Agent
acceptable to the Company (and to the extent possible, from among the
Holders). If no successor Agent shall have been so appointed (and
accepted such appointment) within 30 days after the notice of
resignation or notice of removal, as appropriate, then the Agent shall
select a successor Agent. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations as Agent under this Agency
Agreement and the Security Documents and the provisions of this Section
shall enure to its benefit as to any actions taken or omitted to be
taken by it while it was the Agent under this Agency Agreement. If no
successor Agent has accepted appointment as a successor Agent by the
date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless
thereupon become effective and the Holders shall perform all of the
duties of such retiring Agent hereunder until such time, if any, as the
Required Holders appoint a successor agent as provided for above.
11. Amendments.
(1) Neither this Agency Agreement nor any Security Document nor
any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment,
change, waiver, discharge or termination is in writing entered
into by, or approved in writing by, the Required Holders and
the Company or the Guarantor that is a party thereto, provided
that no such amendment, change, waiver, discharge or
termination shall, without the consent of each Holder: (i)
extend the final maturity of any Note or any portion thereof;
(ii) reduce the rate or extend the time of payment of interest
under any Notes; (iii) reduce the principal amount on any
Notes; (iv) amend, modify or waive any provision of this
Section 11; (v) reduce any percentage specified in, or
otherwise modify, the definition of "Required Holders"; (vi)
consent to the assignment or transfer by the Company of any of
its rights and obligations under (or in respect of) any
Security Document to which it is a party; or (vii) release the
Company or the Guarantor from their obligations under the
Security Documents; or (viii) to the extent the obligations
have become secured by the property of the Company and the
Guarantor, release all or substantially all of such property.
(2) Subject to Subsection (1), no amendment or waiver of any
provisions of any Security Document, nor consent to any
departure by the Company or the Guarantor or any other Person
from such provisions, is effective unless in writing and
approved by the Required Holders.
IN WITNESS WHEREOF this Agency Agreement has been duly executed by the
parties on the date first written above.
SIGNED, SEALED AND DELVERED )
in the presence of: )
)
_____________________________ )
) ---------------------------------
Witness [LENDER]
SIGNED, SEALED AND DELVERED )
in the presence of: )
)
_____________________________ )
) ---------------------------------
Witness XXXXXXX X. XXXXX, as Agent
for the Lender
