EXHIBIT 10.33
AMENDMENT NUMBER FOUR (A) TO LOAN AND SECURITY AGREEMENT
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This AMENDMENT NUMBER FOUR (A) TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of June 20, 2001, is entered into by and among WAM!NET
INC., a Minnesota corporation ("Parent"), each of Parent's Subsidiaries
identified on the signature pages hereof (such Subsidiaries, together with
Parent, are referred to hereinafter each individually as a "Borrower", and
individually and collectively, jointly and severally, as the "Borrowers"), each
of the financial institutions named on the signature pages hereto as Lenders
(such financial institutions, together with their respective successors and
assigns, each a "Lender" and collectively, the "Lenders"), and FOOTHILL CAPITAL
CORPORATION, a California corporation, as agent for the Lenders (in such
capacity, the "Agent").
WHEREAS, the Borrowers have requested the Lender Group to amend
certain terms of that certain Loan and Security Agreement, dated as of February
13, 2001, as amended prior to the date hereof (as further amended, restated,
supplemented, or otherwise modified from time to time, the "Loan Agreement"),
and the Lender Group is willing to amend the Loan Agreement subject to the terms
and conditions of this Amendment. All capitalized terms used herein and not
defined herein shall have the meanings ascribed to them in the Loan Agreement,
as amended hereby.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendments.
(a) Section 1.1 of the Loan Agreement is hereby amended by adding the
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following definitions in alphabetical order:
"Fourth Amendment" means Amendment Number Four (a) to Loan and
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Security Agreement, dated as of June 20, 2001, by and among the Borrowers
and Lender Group.
"Fourth Amendment Closing Date" means the date that all conditions set
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forth in Section 3 of the Fourth Amendment have been satisfied.
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"New Conversion Price" means, (i) with respect to Parent Common Stock,
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a price per share equal to (x) $650,000 divided by (y) an amount equal to
2.6% of the issued and outstanding shares of Parent Common Stock on a fully
diluted basis and (ii) with respect to WGSI Common Stock, a price per share
equal to (x) $650,000 divided by (y) an amount equal to 2.6% of the issued
and outstanding shares of WGSI Common Stock on a fully diluted basis or
such adjusted conversion price in effect at the date of the exercise of the
New Conversion Rights as provided in Section 2.17.
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"New Conversion Rights" means the New Parent Conversion Right and the
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New WGSI Conversion Right.
"New Parent Conversion Right" has the meaning set forth in Section
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2.17.1
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"New Parent Warrant" has the meaning set forth in Section 4(a) of the
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Fourth Amendment.
"New WGSI Conversion Right" has the meaning set forth in Section
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2.17.1.
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"New WGSI Warrant" has the meaning set forth in Section 4(a) of the
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Fourth Amendment.
"Term C Anniversary Fee" has the meaning set forth in Section
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2.11(d)(iii).
"Term C Commitment Fee" has the meaning set forth in Section
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2.11(d)(i).
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"Term C Lender" means each Lender that has issued a Term C Loan
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Commitment.
"Term C Loan" has the meaning set forth in Section 2.14.
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"Term C Loan Amount" means $1,300,000, plus the then extant Term C
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Loan PIK Amount.
"Term C Loan Commitment" means, with respect to each Term C Lender,
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its Term C Loan Commitment, and, with respect to all Term C Lenders, their
Term C Loan Commitments, in each case as such Dollar amounts are set forth
beside such Term C Lender's name under the applicable heading on Schedule
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C-1 or on the signature page of the Assignment and Acceptance pursuant to
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which such Term C Lender became a Term C Lender hereunder in accordance
with the provisions of Section 14.1.
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"Term C Loan PIK Amount" means, as of any date of determination, the
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amount of all interest accrued with respect to the Term C Loan Amount that
has been paid-in-kind by being added to the balance thereof in accordance
with Section 2.6(a)(iii).
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"Term C Loan Rate" means a rate per annum equal to 19.5 %.
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"Term C Use Fee" has the meaning set forth in Section 2.11(d)(iii).
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(b) Section 1.1 of the Loan Agreement is hereby amended by amending and
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restating the following definitions in their respective entirety as follows:
"Additional Shares of Common Stock" means all shares (including
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treasury shares) of Common Stock issued or sold (or, pursuant to Section
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2.16.3, 2.16.4, 2.17.3 or 2.17.4, deemed to be issued) by Parent or WGSI,
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as the case may be, after the date hereof, whether or not subsequently
reacquired or retired by Parent or WGSI, as the case may be, other than
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(a) (i) shares issued upon the conversion of a portion of the Term B
Loan Amount in accordance with Section 2.16 and (ii) such number of
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additional shares as may become issuable upon the conversion of such
portion of the Term B Loan Amount by reason of adjustments required
pursuant to the anti-dilution provisions contained in Section 2.16,
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(b) (i) shares issued upon the conversion of a portion of the Term C
Loan Amount in accordance with Section 2.17 and (ii) such number of
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additional shares as may become issuable upon the conversion of such
portion of the Term C Loan Amount by reason of adjustments required
pursuant to the anti-dilution provisions contained in Section 2.17, and
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(c) (i) shares issued pursuant to, and shares issued upon the exercise
of options granted or to be granted under, Parent's or WGSI's, as the case
may be, stock option plans as in effect on the date hereof or under any
other employee stock option or purchase plan or plans adopted or assumed
after such date by Parent's or WGSI's, as the case may be, Board of
Directors; and (ii) such additional shares as may become issuable pursuant
to the terms of any such plans by reason of adjustments required pursuant
to anti-dilution provisions applicable to such securities in order to
reflect any subdivision or combination of Common Stock, by reclassification
or otherwise, or any dividend on Common Stock payable in Common Stock.
"Commitment" means, with respect to each Lender, its Revolver
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Commitment, Term A Loan Commitment, Term B Loan Commitment or Term C Loan
Commitment, as the context requires, and, with respect to all Lenders,
their Revolver Commitments, Term A Loan Commitments, Term B Loan
Commitments or Term C Loan Commitments, as the context requires, in each
case as such Dollar amounts are set forth beside such Lender's name under
the applicable heading on Schedule C-1 or on the signature page of the
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Assignment and Acceptance pursuant to which such Lender became a Lender
hereunder in accordance with the provisions of Section 14.1.
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"Pro Rata Share" means, as of any date of determination:
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(a) with respect to a Lender's obligation to make Advances and
receive payments of principal, interest, fees, costs, and expenses with
respect thereto, (x) prior to the Revolver Commitment being reduced to
zero, the percentage obtained by dividing (i) such Lender's Revolver
Commitment, by (ii) the aggregate Revolver Commitments of all Lenders, and
(y) from and after the time that the Revolver Commitment has been
terminated or reduced to zero, the percentage obtained by dividing (I) the
aggregate principal amount of such Lender's Advances by (II) the aggregate
principal amount of all Advances,
(b) with respect to a Lender's obligation to participate in
Letters of Credit, to reimburse the Issuing Lender, and to receive payments
of fees with respect thereto, (x) prior to the Revolver Commitment being
reduced to zero, the percentage obtained by dividing (i) such Lender's
Revolver Commitment, by (ii) the aggregate Revolver Commitments of all
Lenders, and (y) from and after the time that the Revolver
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Commitment has been terminated or reduced to zero, the percentage obtained
by dividing (I) the aggregate principal amount of such Lender's Advances by
(II) the aggregate principal amount of all Advances,
(c) with respect to a Lender's obligation to make the Term A Loan
and receive payments of interest, fees, and principal with respect thereto,
(i) prior to the making of the Term A Loan, the percentage obtained by
dividing (x) such Lender's Term A Loan Commitment, by (y) the aggregate
amount of all Lenders' Term A Loan Commitments, and (ii) from and after the
making of the Term A Loan, the percentage obtained by dividing (x) the
principal amount of such Lender's portion of the Term A Loan Amount by (y)
the Term A Loan Amount,
(d) with respect to a Lender's obligation to make the Term B Loan
and receive payments of interest, fees, and principal with respect thereto,
(i) prior to the making of the Term B Loan, the percentage obtained by
dividing (x) such Lender's Term B Loan Commitment, by (y) the aggregate
amount of all Lenders' Term B Loan Commitments, and (ii) from and after the
making of the Term B Loan, the percentage obtained by dividing (x) the
principal amount of such Lender's portion of the Term B Loan Amount by (y)
the Term B Loan Amount,
(e) with respect to a Lender's obligation to make the Term C Loan
and receive payments of interest, fees, and principal with respect thereto,
(i) prior to the making of the Term C Loan, the percentage obtained by
dividing (x) such Lender's Term C Loan Commitment, by (y) the aggregate
amount of all Lenders' Term C Loan Commitments, and (ii) from and after the
making of the Term C Loan, the percentage obtained by dividing (x) the
principal amount of such Lender's portion of the Term C Loan Amount by (y)
the Term C Loan Amount, and
(f) with respect to all other matters as to a particular Lender
(including the indemnification obligations arising under Section 16.7), the
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percentage obtained by dividing (i) such Lender's Revolver Commitment plus
the unpaid principal amount of such Lender's portion of the Term A Loan
Amount, the Term B Loan Amount and the Term C Loan Amount, by (ii) the
aggregate amount of Revolver Commitments of all Lenders, plus the Term A
Loan Amount, plus the Term B Loan Amount, plus the Term C Loan Amount;
provided, however, that in the event the Revolver Commitments have been
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terminated or reduced to zero, Pro Rata Share shall be the percentage
obtained by dividing (A) the principal amount of such Lender's Advances
plus the unpaid principal amount of such Lender's portion of the Term A
Loan Amount, the Term B Loan Amount and the Term C Loan Amount by (B) the
principal amount of all outstanding Advances, plus the Term A Loan Amount,
plus the Term B Loan Amount, plus the Term C Loan Amount.
"Term Loans" means the Term A Loan, the Term B Loan and the Term C
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Loan.
(c) Section 2.4(b)(i) of the Loan Agreement is amended and restated in its
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entirety to read as follows:
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(i) Except as otherwise provided with respect to Defaulting Lenders
and except as otherwise provided in the Loan Documents (including letter
agreements between Agent, individual Lenders and, if applicable,
Borrowers), aggregate principal and interest payments shall be apportioned
ratably among the Lenders (according to the unpaid principal balance of the
Obligations to which such payments relate held by each Lender) and payments
of fees and expenses (other than fees or expenses that are for Agent's
separate account, the Term A Lenders' separate account, the Term B Lenders'
separate accounts or the Term C Lenders' separate accounts, in each case
after giving effect to any letter agreements between Agent, individual
Lenders and, if applicable, Borrowers) shall be apportioned ratably among
the Lenders having a Pro Rata Share of the type of Commitment or Obligation
to which a particular fee relates. All payments shall be remitted to Agent
and all such payments (other than payments received while no Default or
Event of Default has occurred and is continuing and which relate to the
payment of principal or interest of specific Obligations or which relate to
the payment of specific fees), and all proceeds of Accounts or other
Collateral received by Agent, shall be applied as follows:
A. first, to pay any Lender Group Expenses then due to
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Agent under the Loan Documents, until paid in full,
B. second, to pay any Lender Group Expenses then due to the
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Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Agent (for its
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separate account, after giving effect to any letter agreements between
Agent, individual Lenders and, if applicable, Borrowers) under the Loan
Documents until paid in full,
D. fourth, to pay any fees then due to any or all of the
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Lenders (after giving effect to any letter agreements between Agent,
individual Lenders and, if applicable, Borrowers) under the Loan Documents,
on a ratable basis, until paid in full,
E. fifth, to pay interest due in respect of all Agent
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Advances, until paid in full,
F. sixth, ratably to pay interest due in respect of the
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Advances (other than Agent Advances), and the Swing Loans, until paid in
full,
G. seventh, so long as no Event of Default has occurred
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and is continuing, or if an Event of Default has occurred and is continuing
and Agent agrees in its sole discretion, to pay interest due in respect of
the Term A Loan until paid in full (if an Event of Default has occurred or
is continuing and Agent has not consented to such payment, the priority of
the payment of interest on the Term A Loan Amount, is deferred to item
"twelfth" below),
H. eighth, to pay the principal of all Agent Advances until
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paid in full,
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I. ninth, to pay the principal of all Swing Loans until
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paid in full,
J. tenth, to pay the principal of all Advances until paid
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in full,
K. eleventh, if an Event of Default has occurred and is
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continuing, to Agent, to be held by Agent, for the ratable benefit of
Issuing Lender and those Lenders having a Revolver Commitment, as cash
collateral in an amount up to 105% of the then extant Letter of Credit
Usage until paid in full,
L. twelfth, to pay interest due in respect of the Term A
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Loan until paid in full,
M. thirteenth, to pay the outstanding principal balance of
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the Term A Loan until the Term A Loan is paid in full,
N. fourteenth, to pay interest due in respect of the Term B
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Loan, including the Term B Loan PIK Amount, until paid in full,
O. fifteenth, to pay interest due in respect of the Term
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C Loan, including the Term C Loan PIK Amount, until paid in full,
P. sixteenth, to pay the outstanding principal balance of
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the Term B Loan, including the Term B Loan PIK Amount, until the Term B
Loan is paid in full,
Q. seventeenth, to pay the outstanding principal balance
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of the Term C Loan, including the Term C Loan PIK Amount, until the Term C
Loan is paid in full,
R. eighteenth, to pay any other Obligations (other than
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Bank Products) until paid in full,
S. nineteenth, to the payment of any amounts relating to
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Bank Products, and
T. twentieth, to Borrowers (to be wired to the Designated
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Account) or such other Person entitled thereto under applicable law.
(d) Section 2.6(a) of the Loan Agreement hereby is amended and restated in
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its entirety to read as follows:
(a) Interest Rates. Except as provided in clause (c) below, all
Obligations (except for undrawn Letters of Credit) that have been charged
to the Loan Account pursuant to the terms hereof shall bear interest on the
Daily Balance thereof as follows: (i) if the relevant Obligation is a Term
A Loan, at a per annum rate equal to the Term A Loan Rate, (ii) if the
relevant Obligation is a Term B Loan (inclusive of any Term B Loan PIK
Amount), at a per annum rate equal to the Term B Loan Rate; provided,
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however, that, so long as no Event of Default has occurred and is
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continuing, all such interest (the amount of such interest is referred to
herein as the "Term B Loan PIK Amount") shall be paid-in-kind by being
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added to the principal balance of the Term B Loan Amount (inclusive of any
Term B Loan PIK Amount theretofore so added), (iii) if the relevant
Obligation is a Term C Loan (inclusive of any Term C Loan PIK Amount), at a
per annum rate equal to the Term C Loan Rate; provided, however, that, so
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long as no Event of Default has occurred and is continuing, all such
interest (the amount of such interest is referred to herein as the "Term C
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Loan PIK Amount") shall be paid-in-kind by being added to the principal
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balance of the Term C Loan Amount (inclusive of any Term C Loan PIK Amount
theretofore so added), and (iv) otherwise, at a per annum rate equal to the
Base Rate plus the Base Rate Margin.
(e) Section 2.11 of the Loan Agreement is amended by inserting a new
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subsection (d) at the end of Section 2.11, to read as follows:
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(d) Term C Fees. Borrowers shall pay to Agent the following fees and
charges, which fees and charges shall be non-refundable when paid
(irrespective of whether this Agreement is terminated thereafter) and shall
be apportioned among the Term C Lenders in accordance with their Pro Rata
Shares:
(i) Term C Commitment Fee. A commitment fee of $78,000 (the "Term C
Commitment Fee").
(ii) Term C Use Fee. A use fee of $26,000 (the "Term C Use Fee").
(iii) Term C Anniversary Fee. An anniversary fee equal to 3% of the
sum of (A) $1,300,000 plus (B) the difference between (x) the Term C
Loan Amount on such anniversary date and (y) $1,300,000 due and
payable in cash on each anniversary of the Fourth Amendment Closing
Date (the "Term C Anniversary Fee").
(f) Section 2.14 of the Loan Agreement is amended and restated in its
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entirety to read as follows:
2.14 Term B Loan and Term C Loan. (a) On the Second Amendment
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Closing Date, the Term B Lender made a term loan to the Borrowers in the
principal amount of $3,240,000 (the "Initial Term B Loan"). On the Third
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Amendment Closing Date, the Term B Lender made a term loan to the Borrower
in the principal amount of $4,350,000 (the "New Term B Loan"). The
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principal amount of the New Term B Loan shall be added to the principal
amount of the Initial Term B Loan and such loans shall be deemed a single
term loan (hereinafter, the "Term B Loan"). The outstanding unpaid
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principal balance and all accrued and unpaid interest under the Term B
Loan, including the Term B Loan PIK Amount, shall be due and payable on the
date of termination of this Agreement, whether by its terms, by prepayment,
or by acceleration. All amounts outstanding under the Term B Loan,
including all accrued and unpaid interest and including the Term B Loan PIK
Amount, shall constitute Obligations.
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(b) Subject to the terms and conditions of this Agreement, on
the Fourth Amendment Closing Date, the Term C Lender agrees to make a term
loan to the Borrowers in the principal amount of $1,300,000 (the "Term C
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Loan"). The outstanding unpaid principal balance and all accrued and unpaid
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interest under the Term C Loan, including the Term C Loan PIK Amount, shall
be due and payable on the date of termination of this Agreement, whether by
its terms, by prepayment, or by acceleration. All amounts outstanding under
the Term C Loan, including all accrued and unpaid interest and including
the Term C Loan PIK Amount, shall constitute Obligations.
(g) Section 2 of the Loan Agreement is amended by inserting a new Section
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2.17 at the end of Section 2, to read as follows:
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Section 2.17.1 New Right to Convert
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(a) The Term C Lender may, in its sole and absolute discretion, (i)
convert a portion of the Term C Loan Amount equal to $650,000 into the
number of shares of Parent Common Stock representing two and six-tenths
percent (2.6%) of the issued and outstanding shares of Parent Common Stock
on a fully diluted basis (the "New Parent Conversion Right") and (ii)
convert a portion of the Term C Loan Amount equal to $650,000 into the
number of shares of WGSI Common Stock representing two and six-tenths
percent (2.6%) of the issued and outstanding shares of WGSI Common Stock on
a fully diluted basis (the "New WGSI Conversion Right"), at any time and
from time to time (including, without limitation, during the continuance of
an Event of Default) that the Term C Loan Amount is outstanding; provided,
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however, that the Term C Lender shall not have the right to (i) exercise
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its New Parent Conversion Right in the event that the Term C Lender (or its
nominee) has exercised the New Parent Warrant, (ii) exercise the New WGSI
Conversion Right in the event that the Term C Lender (or its nominee) has
exercised the New WGSI Warrant or (iii) exercise either the New Parent
Conversion Right or the New WGSI Conversion Right if such exercise would
result in ownership or beneficial ownership, direct or indirect, of five
percent (5%) or more of WGSI's voting stock or of twenty-five percent (25%)
or more of WGSI's non-voting stock by a Foreign Person.
(b) The option of Term C Lender to exercise its rights pursuant to
this Section 2.17.1 shall be exercised by the delivery of a written notice
of election by such holder to Parent, which notice shall state the Term C
Loan Amount and the date on which such election is to be effective (the
"New Conversion Date") and shall be delivered on a date not less than 10
nor more than 60 Business Days prior to the New Conversion Date. A notice
of election, once delivered, may be rescinded at any time prior to the New
Conversion Date.
(c) Upon the New Conversion Date the Term C Lender (or its nominee)
shall be entitled to receive, (i) in exchange for a portion of the Term C
Loan Amount equal to $650,000, the number of shares of Parent Common Stock
equal to two and six-tenths percent (2.6%) of the issued and outstanding
shares of Parent Common Stock on a fully diluted basis, and (ii) in
exchange for a portion of the Term C Loan Amount equal to $650,000, the
number of shares of WGSI Common Stock equal to two and six-tenths
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percent (2.6%) of the issued and outstanding shares of WGSI Common Stock on
a fully diluted basis.
(d) Each of Parent and WGSI shall at all times, when the Term C Loan
Amount shall be outstanding, reserve and keep available out of its
authorized but unissued shares of Common Stock, for the purposes of
effecting the conversion of the Term C Loan Amount, the number of duly
authorized shares of Common Stock as shall from time to time be sufficient
to effect the conversion of the Term C Loan Amount pursuant to the New
Parent Conversion Right and the New WGSI Conversion Right, on a fully
diluted basis.
(e) Each of Parent and WGSI shall comply with all federal and state
securities laws regulating the offer and sale of shares of Common Stock
upon exercise of the conversion rights set forth in this Section 2.17.
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Section 2.17.2. Notices Relating to Potential Conversion
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Events. In the event of any of the following, at least 20 days prior to
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such proposed event Parent or WGSI, as the case may be, shall give notice
to the Term C Lender, stating the proposed record or effective date, as the
case may be, of such event:
(a) Parent or WGSI, as the case may be, proposes to set a record date
of the holders of any class of securities for the purpose of determining
the holders thereof who are entitled to receive any dividend (other than a
regularly scheduled cash dividend payable out of consolidated earnings or
earned surplus, determined in accordance with generally accepted accounting
principles, in an amount not exceeding the amount of the cash dividend for
the immediately preceding period) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any
class or any other securities or property, or to receive any other right or
property;
(b) any capital reorganization of Parent or WGSI, as the case may be,
any reclassification or recapitalization of the capital stock of Parent or
WGSI, as the case may be, any consolidation or merger involving Parent or
WGSI, on the on hand, and any other Person, on the other hand, any
transaction or series of transactions in which more than 50% of the voting
securities of Parent or WGSI, as the case may be, are transferred to
another Person, or any transfer, sale or other disposition of all or
substantially all the assets of Parent or WGSI, as the case may be, to any
other Person; or
(c) there is proposed a voluntary or involuntary dissolution or
liquidation or winding up of Parent or WGSI, as the case may be.
Section 2.17.3 Reclassifications, Consolidations, Mergers,
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Sales, Etc. If any of the following shall occur, namely: (a) any
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reclassification or change of the shares of Common Stock issuable upon
exercise of the New Conversion Rights; (b) any consolidation or merger to
which Parent or WGSI, as the case may be, is a party other than a merger in
which Parent or WGSI, as the case may be, is the continuing entity and
which does not result in any reclassification of, or change (other than a
change in name or as a result of a subdivision or combination) in, the
Common Stock; or (c) any sale or
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conveyance of all or substantially all of the assets of Parent or WGSI, as
the case may be, then Parent or WGSI, as the case may be, or such successor
or purchasing entity, as the case may be, shall, as a condition precedent
to such reclassification, change, consolidation, merger, sale or
conveyance, execute and deliver to the Term C Lender an agreement providing
that the Term C Lender shall have the right to convert up to $1,300,000 of
the Term C Loan Amount into the kind and amount of units and other
securities and property (including cash) receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock deliverable upon exercise of
the New Conversion Rights immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance. If, in the case of any
such consolidation, merger, sale or conveyance, the securities and property
(including cash) receivable thereupon by a shareholder include securities
and property of a corporation other than the successor or purchasing
entity, as the case may be, in such consolidation, merger, sale or
conveyance, then such agreement shall also be executed by such other entity
and shall contain such additional provisions to protect the shares of
Common Stock of the Term C Lender as the Board of Directors of Parent or
WGSI, as the case may be, shall reasonably consider necessary by reason of
the foregoing. The provisions of this Section 2.17.3 shall similarly apply
to successive consolidations, mergers, sales or conveyances.
Section 2.17.4 Adjustment of Common Stock.
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(a) Adjustment of Conversion Price and Common Stock. Upon each
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adjustment of the New Conversion Price as a result of the calculations made
in this Section 2.17.4, the Term C Loan Amount shall thereafter evidence
the right to receive, at the adjusted New Conversion Price, that number of
shares of Common Stock (calculated to the nearest one-hundredth) obtained
by dividing (i) the product of the aggregate number of shares of Common
Stock into which the Term C Loan Amount was convertible immediately prior
to such adjustment and the New Conversion Price in effect immediately prior
to such adjustment of the New Conversion Price by (ii) the New Conversion
Price in effect immediately after such adjustment of the New Conversion
Price.
(b) Issuance of Additional Shares of Common Stock In case Parent or
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WGSI, as the case may be, at any time or from time to time after the date
hereof shall issue or sell Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section
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2.17.4(d) or (e)); provided that such Additional Shares of Common Stock
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shall not be deemed to have been issued unless (i) the consideration per
share (determined pursuant to Section 2.17.4(f)) for such shares would be
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less than the greater of the New Conversion Price and the Current Market
Price in effect on the date of an immediately prior to such issue, sale,
grant or assumption or immediately prior to the close of business on such
record date (or, if the Common Stock trades on an ex-dividend basis, on the
date prior to the commencement of ex-dividend trading), as the case may be,
then, and in each such case, subject to Section 4.4(i), the New Conversion
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Price shall be reduced, concurrently with such issue or sale, to a price
(calculated to the nearest .001 of a cent) determined by multiplying such
New Conversion Price by a fraction
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(i) the numerator of which shall be the sum of (i) the
number of shares of Common Stock outstanding immediately prior
to such issue or sale and (ii) the number of shares of Common
Stock which the aggregate consideration received by Parent or
WGSI, as the case may be, for the total number of such
Additional Shares of Common Stock so issued or sold would
purchase at the greater of such New Conversion Price and such
Current Market Price, and
(ii) the denominator of which shall be the number of
shares of Common Stock outstanding immediately after such issue
or sale, provided that, for the purposes of this Section 2.17.4,
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(x) immediately after any Additional Shares of Common Stock are
deemed to have been issued pursuant to Section 2.17.4(d) or
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2.17.4(e), such Additional Shares of Common Stock shall be deemed
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to be outstanding, and (y) treasury shares of Common Stock shall
not be deemed to be outstanding.
(c) Extraordinary Dividends and Distributions In case Parent or WGSI
-----------------------------------------
as the case may be, at any time or from time to time after the date hereof
shall declare, order, pay or make a dividend or other distribution
(including, without limitation, any distribution of other or additional
stock or other securities or property or options by way of dividend or
spin-off, reclassification, recapitalization or similar corporate
rearrangement) on Common Stock other than (a) a dividend payable in
Additional Shares of Common Stock or (b) a regularly scheduled cash
dividend, the New Conversion Price in effect immediately prior to the close
of business on the record date fixed for the determination of holders of
any class of securities entitled to receive such dividend shall be reduced,
effective as of the close of business on such record date, to a price
determined by multiplying such New Conversion Price by a fraction
(i) the numerator of which shall be the Current Market Price in
effect on such record date or, if the Common Stock trades on an
ex-dividend basis, on the date prior to the commencement of ex-
dividend trading, less the Fair Value of such dividend or
distribution applicable to one share of Common Stock, and
(ii) the denominator of which shall be such Current Market Price
(d) Treatment of Options and Convertible Securities In case Parent
-----------------------------------------------
or WGSI, as the case may be, at any time or from time to time after the
date hereof shall issue, sell, grant or assume, or shall fix a record date
for the determination of holders of any class of securities of Parent or
WGSI, as the case may be, entitled to receive, any Options or Convertible
Securities (whether or not the rights thereunder are immediately
exercisable), then, and in each such case, the maximum number of Additional
Shares of Common Stock (as set forth in the instrument relating thereto,
without regard to any provisions contained therein for a subsequent
adjustment of such number) issuable upon the exercise of such Options or,
in the case of Convertible Securities and Options therefor, the conversion
or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue,
sale, grant or assumption or,
-11-
in case such a record date shall have been fixed, as of the close of
business on such record date (or, if the Common Stock trades on an ex-
dividend basis, on the date prior to the commencement of ex-dividend
trading), provided that such Additional Shares of Common Stock shall not be
--------
deemed to have been issued unless (i) the consideration per share
(determined pursuant to Section 2.17.4(f)) for such shares would be less
-----------------
than the greater of the New Conversion Price and the Current Market Price
in effect on the date of and immediately prior to such issue, sale, grant
or assumption or immediately prior to the close of business on such record
date (or, if the Common Stock trades on an ex-dividend basis, on the date
prior to the commencement of ex-dividend trading), as the case may be, and
provided, further, that
-------- -------
(i) whether or not the Additional Shares of Common Stock
underlying such Options or Convertible Securities are deemed to
be issued, no further adjustment of the New Conversion Price
shall be made upon the subsequent issue or sale of Convertible
Securities or shares of Common Stock upon the exercise of such
Options or the conversion or exchange of such Convertible
Securities;
(ii) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase
in the consideration payable to Parent or WGSI, as the case may
be, or decrease in the number of Additional Shares of Common
Stock issuable, upon the exercise, conversion or exchange thereof
(by change of rate or otherwise), the New Conversion Price
computed upon the original issue, sale, grant or assumption
thereof (or upon the occurrence of the record date, or date prior
to the commencement of ex-dividend trading, as the case may be,
with respect thereto), and any subsequent adjustments based
thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease
insofar as it affects such Options, or the rights of conversion
or exchange under such Convertible Securities, which are
outstanding at such time;
(iii) upon the expiration (or purchase by Parent or WGSI, as the
case may be, and cancellation or retirement) of any such Options
which shall not have been exercised or the expiration of any
rights of conversion or exchange under any such Convertible
Securities which (or purchase by Parent or WGSI, as the case may
be, and cancellation or retirement of any such Convertible
Securities the rights of conversion or exchange under which)
shall not have been exercised, the New Conversion Price computed
upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date, or date prior to the
commencement of ex-dividend trading, as the case may be, with
respect thereto), and any subsequent adjustments based thereon,
shall, upon such expiration (or such cancellation or retirement,
as the case may be), be recomputed as if:
(A) in the case of Options for Common Stock or Convertible
Securities, the only Additional Shares of Common Stock
issued or
-12-
sold were the Additional Shares of Common Stock, if any,
actually issued or sold upon the exercise of such Options
or the conversion or exchange of such Convertible
Securities and the consideration received therefor was the
consideration actually received by Parent or WGSI, as the
case may be, for the issue, sale, grant or assumption of
all such Options, whether or not exercised, plus the
consideration actually received by Parent or WGSI, as the
case may be, upon such exercise, or for the issue or sale
of all such Convertible Securities which were actually
converted or exchanged, plus the additional consideration,
if any, actually received by Parent or WGSI, as the case
may be, upon such conversion or exchange, and
(B) in the case of Options for Convertible Securities,
only the Convertible Securities, if any, actually issued
or sold upon the exercise of such Options were issued at
the time of the issue or sale, grant or assumption of such
Options, and the consideration received by Parent or WGSI,
as the case may be, for the Additional Shares of Common
Stock deemed to have then been issued was the
consideration actually received by Parent or WGSI, as the
case may be, for the issue, sale, grant or assumption of
all such Options, whether or not exercised, plus the
consideration deemed to have been received by Parent or
WGSI, as the case may be (pursuant to Section 2.17.4(f))
-----------------
upon the issue or sale of such Convertible Securities with
respect to which such Options were actually exercised;
(iv) no readjustment pursuant to subsection (ii) or (iii) above
shall have the effect of increasing the New Conversion Price by
an amount in excess of the amount of the adjustment thereof
originally made in respect of the issue, sale, grant or
assumption of such Options or Convertible Securities; and
(v) in the case of any such Options which expire by their
terms not more than 30 days after the date of issue, sale, grant
or assumption thereof, no adjustment of the New Conversion Price
shall be made until the expiration or exercise of all such
Options, whereupon such adjustment shall be made in the manner
provided in subsection (iii) above.
(e) Treatment of Stock Dividends, Stock Splits, Etc In case Parent
-----------------------------------------------
or WGSI, as the case may be, at any time or from time to time after the
date hereof shall declare or pay any dividend on Common Stock payable in
Common Stock, or shall effect a subdivision of the outstanding shares of
Common Stock into a greater number of shares of Common Stock (by
reclassification or otherwise than by payment of a dividend or dividend in
shares of Common Stock), then, and in each such case, Additional Shares of
Common Stock shall be deemed to have been issued (i) in the case of any
such dividend, immediately after the close of business on the record date
for the determination of holders
-13-
of any class of securities entitled to receive such dividend, or (ii) in
the case of any such subdivision, at the close of business on the day
immediately prior to the day upon which such action becomes effective.
(f) Computation of Consideration For the purposes of this Section
---------------------------- -------
2.17.4,
------
(i) the consideration for the issue or sale of any Additional
Shares of Common Stock shall, irrespective of the accounting treatment
of such consideration,
(x) insofar as it consists of cash, be computed at the net
amount of cash received by Parent or WGSI, as the case may be,
without deducting any expenses paid or incurred by Parent or
WGSI, as the case may be, or any commissions or compensations
paid or concessions or discounts allowed to underwriters, dealers
or others performing similar services in connection with such
issue or sale,
(y) insofar as it consists of property (including securities)
other than cash, be computed at the Fair Value thereof at the
time of such issue or sale, and
(z) in case Additional Shares of Common Stock are issued or sold
together with other stock or securities or other assets of Parent
or WGSI, as the case may be, for a consideration which covers
both, be the portion of such consideration so received, computed
as provided in clauses (i) and (ii) above, allocable to such
Additional Shares of Common Stock, such allocation to be
determined in the same manner that the Fair Value of property not
consisting of cash or securities is to be determined as provided
in the definition of 'Fair Value' herein;
(ii) Additional Shares of Common Stock deemed to have been issued
pursuant to Section 2.17.4, relating to Options and Convertible
--------------
Securities, shall be deemed to have been issued for a consideration
per share determined by dividing
(x) the total amount, if any, received and receivable by
Parent or WGSI, as the case may be, as consideration for the
issue, sale, grant or assumption of the Options or Convertible
Securities in question, plus the minimum aggregate amount of
additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration to
protect against dilution) payable to Parent or WGSI, as the case
may be, upon the exercise in full of such Options or the
conversion or exchange of such Convertible Securities or, in the
case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange
of such Convertible Securities, in each case computing such
consideration as provided in the foregoing subdivision (i),
-14-
by
(y) the maximum number of shares of Common Stock (as set
forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such
number to protect against dilution) issuable upon the exercise of
such Options or the conversion or exchange of such Convertible
Securities; and
(iii) Additional Shares of Common Stock deemed to have been
issued pursuant to this Section, relating to stock dividends, stock
splits, etc. or to employee benefit plans, employee compensation or
incentives of Parent or WGSI, as the case may be, or any Affiliate
thereof or otherwise to employees of Parent or WGSI, as the case may
be, or any Affiliate thereof (except in a public offering open to the
public generally on the same terms as such employees) shall be deemed
to have been issued for no consideration.
(g) Adjustments for Combinations, Etc In case the outstanding shares
---------------------------------
of Common Stock shall be combined or consolidated, by reclassification or
otherwise, into a lesser number of shares of Common Stock, the New
Conversion Price in effect immediately prior to such combination or
consolidation shall, concurrently with the effectiveness of such
combination or consolidation, be proportionately increased.
(h) Dilution in Case of Other Securities In case any Other Securities
------------------------------------
shall be issued or sold or shall become subject to issue or sale upon the
conversion or exchange of any stock (or Other Securities) of Parent or
WGSI, as the case may be, (or any issuer of Other Securities of any other
Person) or to subscription, purchase or other acquisition pursuant to any
Options issued or granted by Parent or WGSI, as the case may be, (or any
such other issuer or Person) for a consideration such as to dilute, on a
basis consistent with the standards established in the other provisions of
this Section 2.17.4, the New Conversion Rights under this Section 2.17,
-------------- ------------
then, and in each such case, the computations, adjustments and
readjustments provided for in this Section 2.17.4 with respect to the New
--------------
Conversion Price and the number of shares purchasable hereunder shall be
made as nearly as possible in the manner so provided and applied to
determine the amount of Other Securities from time to time receivable upon
the exercise of the New Conversion Rights, so as to protect the holders of
the Term C Loan Amount against the effect of such dilution.
(i) De Minimis Adjustments. If the amount of any adjustment of the
----------------------
New Conversion Price per share required pursuant to this Section 2.17.4
--------------
would be less than one tenth (1/10) of one percent (1%) of the New
Conversion Price, such amount shall be carried forward and adjustment with
respect thereto made at the time of and together with any subsequent
adjustment which, together with such amount and any other amount or amounts
so carried forward, shall aggregate a change in the New Conversion Price of
at least one tenth (1/10) of one percent (1%) of such New Conversion Price.
All calculations under this Section shall be made to the nearest .001 of a
cent or to the nearest one-hundredth of a share, as the case may be.
-15-
(j) Abandoned Dividend or Distribution. If Parent or WGSI, as the
----------------------------------
case may be, shall take a record of the holders of its Common Stock for the
purpose of entitling them to receive a dividend or other distribution
(which results in an adjustment to the New Conversion Price under the terms
of this Agreement) and shall, thereafter, and before such dividend is paid
or delivered to members entitled thereto, legally abandon its plan to pay
or deliver such dividend or distribution, then any adjustment made to the
New Conversion Price and number of shares of Common Stock into which Term C
Loan Amount is convertible by reason of the taking of such record shall be
reversed, and any subsequent adjustments, based thereon, shall be
recomputed.
(k) Other Dilutive Events In case any event shall occur as to which
---------------------
the provisions of this Section hereof are not strictly applicable or if
strictly applicable would not fairly protect the conversion rights of the
holders of this Agreement in accordance with the essential intent and
principles of such Sections, then, in each such case, the Board of
Directors of Parent or WGSI, as the case may be, shall make an adjustment
in the application of such provisions, in accordance with such essential
intent and principles, so as to preserve, without dilution, the New
Conversion Rights in accordance with this Section 2.17.
------------
(l) No Dilution or Impairment Parent or WGSI, as the case may be,
-------------------------
shall not, by amendment of its certificate of incorporation or through any
consolidation, merger, reorganization, transfer of assets, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Section
-------
2.17, but will at all times in good faith assist in the carrying out of all
-----
such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of the Term C Lender under this
Section 2.17 against dilution or other impairment. Without limiting the
------------
generality of the foregoing, Parent or WGSI, as the case may be (i) shall
take all such action as may be necessary or appropriate in order that
Parent and WGSI, as the case may be, may validly and legally issue fully
paid and nonassessable shares of Common Stock, free from all taxes, liens,
security interests, encumbrances, preemptive rights and charges on the
exercise of the New Conversion Rights, (ii) shall not take any action which
results in any adjustment of the New Conversion Price if the total number
of shares of Common Stock (or Other Securities) issuable after the action
upon the exercise of the New Conversion Rights would exceed the total
number of shares of Common Stock (or Other Securities) then authorized by
Parent's or WGSI's, as the case may be, certificate of incorporation and
available for the purpose of issue upon such exercise, (iii) shall not
permit the par value of any shares of stock receivable upon exercise of the
New Conversion Rights to exceed the amount payable therefor upon such
exercise, and (iv) shall not issue any capital stock of any class which is
preferred as to dividends or as to the distribution of assets upon
voluntary or involuntary dissolution, liquidation or winding-up, unless the
rights of the holders thereof shall be limited to a fixed sum or percentage
of par value or a sum determined by reference to a formula based on a
published index of interest rates, an interest rate publicly announced by a
financial institution or a similar indicator of interest rates in respect
of participation in dividends and to a fixed sum or percentage of par value
in any such distribution of assets.
-16-
(h) Section 6.17 of the Loan Agreement is amended to read as follows:
------------
Section 6.17 Full Cooperation and Best Efforts. Cooperate fully
---------------------------------
with the Term B Lender and the Term C Lender and use best efforts to obtain
all consents and to deliver all notices which may be required for the
exercise of the WGSI Conversion Right and the New WGSI Conversion Right and
the exercise of the WGSI Warrant and the New WGSI Warrant, in each case as
soon as possible and at the sole cost and expense of the Borrowers.
(i) Schedule C-1 hereby is amended and restated in its entirety to read as
------------
set forth in Annex I attached hereto.
2. Acknowledgement of the Obligations. Borrowers acknowledge that, as of June
19, 2001, (i) Borrowers owe the Original Lenders $14,812,723.35 in principal for
Advances plus accrued and unpaid interest, (ii) Borrowers owe the Term A Lender
$2,400,000 in principal for the Term A Loan plus accrued and unpaid interest,
(iii) Borrowers owe the Term B Lender $3,240,000 in principal for the Initial
Term B Loan plus accrued and unpaid interest, and (iv) Borrowers owe the Term B
Lender $4,350,000 in principal for the New Term B Loan plus accrued and unpaid
interest. The total amount of the Obligations, including without limitation
principal, interest and fees and reasonable expenses of Lenders' counsel, is by
the execution of this Amendment by Borrowers, ratified, confirmed and approved
by Borrowers in all respects. Borrowers acknowledge and agree that (a) the
Obligations are valid and binding obligations of Borrowers, enforceable against
Borrowers in accordance with their terms, and (b) Borrowers are presently
obligated to pay these amounts and all of their other existing Obligations in
accordance with the terms of the Loan Documents, all without any further demand,
notice or claim. In addition, Borrowers acknowledge and agree with Lenders that
(x) Borrowers have no known claim or cause of action against Lenders (or
Lenders' directors, officers, employees, agents, affiliates or attorneys), (y)
Borrowers have no known offset right, counterclaim or defense of any kind
against any Obligations, and (z) Lenders have heretofore properly performed and
satisfied in a timely manner all of Lenders' obligations to Borrowers.
3. Conditions. This Amendment shall become effective only upon satisfaction in
full of the following conditions precedent:
(a) Agent shall have received on or before the Fourth Amendment Closing
Date the following, each in form and substance satisfactory to Agent (and, where
indicated, the applicable Lender) and, unless indicated otherwise, dated as of
the Fourth Amendment Closing Date:
(i) counterparts of this Amendment, duly executed by the Borrowers
and the Lender Group; and
(ii) such other agreements, instruments, approvals, opinions
(including, without limitations, a "fairness" opinion from Xxxxxxx
Xxxxx & Co., Inc. with respect to the Term C Loan) and other documents
as Agent or any Lender may reasonably request.
-17-
(b) Subject to Section 2.14(c) of the Loan Agreement (as amended hereby),
the Term C Lender shall have received the Term C Equity Documents (as
hereinafter defined) in form and substance satisfactory to the Term C Lender.
(c) Subject to Section 2.14(c) of the Loan Agreement (as amended hereby),
Agent shall have received from the Borrowers, for the benefit of the Term C
Lender, the Term C Commitment Fee and the Term C Use Fee, which Term C
Commitment Fee and the Term C Use Fee shall be fully earned as of the date of
this Amendment; the parties hereto agree that the Term C Commitment Fee and the
Term C Use Fee shall be paid from the proceeds of the Term C Loan.
(d) The several counsel to the members of the Lender Group shall have
received payment, in immediately available funds, of all accrued and unpaid
attorneys fees and expenses constituting Lender Group Expenses incurred in
connection with this Amendment and the transactions contemplated hereunder or
reasonably ancillary hereto;
(e) The representations and warranties in this Amendment, the Loan
Agreement as amended by this Amendment, and the other Loan Documents shall be
true and correct in all respects on and as of the date hereof, as though made on
such date (except to the extent that such representations and warranties relate
solely to an earlier date);
(f) No Default or Event of Default shall have occurred and be continuing
on the date hereof, nor shall result from the consummation of the transactions
contemplated herein;
(g) No injunction, writ, restraining order, or other order of any nature
prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
governmental authority against Borrowers or the Lender Group; and
(h) All other documents and legal matters in connection with the
transactions contemplated by this Amendment shall have been delivered or
executed or recorded and shall be in form and substance satisfactory to Agent
and its counsel.
4. Term C Equity Documents. In consideration of the financial accommodations
being provided to Borrowers by the Term C Lender pursuant to this Amendment, the
parties hereto hereby agree as follows:
(a) On the Fourth Amendment Closing Date, the Parent and WGSI agree to
execute and deliver to the Term C Lender, the following instruments
(collectively, the "Term C Equity Documents"; together with this Amendment and
any other documents delivered pursuant to Section 3(a) above, each an "Amendment
Document" and collectively, the "Amendment Documents"), each in form and
substance satisfactory to the Term C Lender:
(i) a warrant issued to the Term C Lender (or its nominee) to purchase
up to ten percent (10%) on a fully diluted basis, of the number of
shares of the Parent's common stock on the Fourth Amendment Closing
Date (the "New Parent Warrant"), duly executed by the Parent;
-18-
(ii) a warrant issued to the Term C Lender (or its nominee) to
purchase up to ten percent (10%), on a fully diluted basis, of the
number of shares of WGSI Common Stock on the Fourth Amendment Closing
Date (the "New WGSI Warrant"; together with the New Parent Warrant,
collectively, the "New Warrants"), duly executed by WGSI.
(iii) a registration rights agreement between the Parent and the Term
C Lender in respect of the shares of common stock issuable under the
New Parent Warrant or pursuant to the New Parent Conversion Right
under Section 2.17 of the Loan Agreement (as amended hereby) (the "New
------------
Parent Registration Rights Agreement"), duly executed by the Parent;
(iv) a registration rights agreement between WGSI and the Term C
Lender in respect of the shares of common stock of WGSI issuable under
the New WGSI Warrant or pursuant to the New WGSI Conversion Right
under Section 2.17 of the Loan Agreement (as amended hereby) (the "New
------------
WGSI Registration Rights Agreement"; together with the New Parent
Registration Rights Agreement, collectively, the "New Registration
Rights Agreements"), duly executed by WGSI; and
(v) such other agreements, instruments, approvals, opinions and
other documents as the Term C Lender may reasonably request in
connection with the New Warrants and the New Registration Rights
Agreement.
(b) The Parent and WGSI agree that (i) each of the New Warrants shall have
(A) an expiration date of five (5) years from the Fourth Amendment Closing Date,
(B) an exercise price per share equal to the New Exercise Price (as defined
below) and (C) anti-dilution provisions acceptable to the Term C Lender but in
no event less favorable than those of shareholders existing on or after the date
hereof, and (ii) each of the New Registration Rights Agreements shall grant the
Term C Lender (or its nominee) (A) at least two demand registration rights, (B)
unlimited "S-3" registration rights and (C) unlimited "piggy-back" registration
rights.
(c) As used in subsection (b) above, "New Exercise Price" means (i) with
respect to Parent Common Stock, a price per share equal to (x) $650,000, divided
by (y) an amount equal to two and six-tenths percent (2.6%) of the issued and
outstanding shares of Parent Common Stock on a fully diluted basis and (ii) with
respect to WGSI Common Stock, a price per share equal to (x) $650,000 divided by
(y) an amount equal to two and six-tenths percent (2.6%) of the issued and
outstanding shares of WGSI Common Stock on a fully diluted basis or such
adjusted exercise price in effect at the date of the exercise of the New Parent
Warrant or the New WGSI Warrant, as applicable.
(d) The Term C Lender agrees that (i) if the Term C Lender exercises its
New Parent Conversion Right under Section 2.17 of the Loan Agreement (as amended
------------
hereby), the New Parent Warrant shall expire, and (ii) if the Term C Lender
exercises its New WGSI Conversion Right under Section 2.17 of the Loan Agreement
------------
(as amended hereby), the New WGSI Warrant shall expire.
-19-
(e) The Agent and each of the Lenders hereby consent to the issuance of
the Term C Equity Documents and to the terms thereof and waive any term,
agreement or covenant in the Loan Agreement or in any other Loan Document which
would otherwise restrict or prohibit the execution, delivery and performance of
the Term C Equity Documents. Such consent and waiver shall be effective only in
this specific instance and for this specific purpose and shall not permit any
further departure from the terms of the Loan Documents, all of which shall
remain in full force in effect (except as expressly set forth in this Amendment)
and are hereby ratified and confirmed.
5. Representations and Warranties. Each Borrower hereby represents and
warrants to the Lender Group that (a) the execution, delivery, and performance
of each Amendment Document to which it is a party, and the performance of the
Loan Agreement, as amended by this Amendment, are within its corporate or other
organizational powers, have been duly authorized by all necessary corporate
action, and are not in contravention of any law, rule, or regulation, or any
order, judgment, decree, writ, injunction, or award of any arbitrator, court, or
governmental authority, or of the terms of its charter or bylaws, or of any
contract or undertaking to which it is a party or by which any of its properties
may be bound or affected, and (b) each Amendment Document to which it is a party
and the Loan Agreement, as amended by this Amendment, constitute such Borrower's
legal, valid, and binding obligation, enforceable against such Borrower in
accordance with its terms.
6. Further Assurances. Borrowers shall execute and deliver all agreements,
documents, and instruments, in form and substance satisfactory to Agent, and
take all actions as Agent or any Lender may reasonably request from time to time
fully to consummate the transactions contemplated under the Amendment Documents
and the Loan Agreement, as amended by this Amendment.
7. Miscellaneous.
(a) Upon the effectiveness of this Amendment, each reference in the Loan
Agreement to "this Agreement", "hereunder", "herein", "hereof" or words of like
import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(b) Upon the effectiveness of this Amendment, each reference in the Loan
Documents to the "Loan Agreement", "thereunder", "therein", "thereof" or words
of like import referring to the Loan Agreement shall mean and refer to the Loan
Agreement as amended by this Amendment.
(c) This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
(d) This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, shall be deemed to be an original, and all of which, when taken
together, shall constitute but one and the same Amendment. Delivery of an
executed counterpart of this Amendment by telefacsimile shall be equally as
effective as delivery of a manually executed counterpart of this Amendment. Any
party delivering an executed counterpart of this Amendment by telefacsimile also
shall deliver a
-20-
manually executed counterpart of this Amendment but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability, and
binding effect of this Amendment.
(e) This Amendment is a Loan Document.
[Remainder of this page intentionally left blank]
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date first above written.
Borrowers:
----------
WAM!NET INC., a
Minnesota corporation
By: __________________________________
Title: _______________________________
WAM!NET GOVERNMENT SERVICES, INC.,
a Minnesota corporation
By: __________________________________
Title: _______________________________
WAM!NET PROFESSIONAL SERVICES LLC,
a Minnesota limited liability company
By: __________________________________
Title: _______________________________
Agent:
-----
FOOTHILL CAPITAL CORPORATION,
a California corporation, as Agent
By: __________________________________
Title: _______________________________
(Signature Page to the Fourth Amendment)
-22-
Lenders:
-------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: __________________________________
Title: _______________________________
ABLECO FINANCE LLC,
a Delaware limited liability company
(for itself and as agent for certain
of its affiliates)
By: __________________________________
Title: _______________________________
XXXXXXXXX L.L.C.,
a New York limited liability company
(for itself and as agent for certain
of its affiliates)
By: __________________________________
Title: _______________________________
(Signature Page to the Fourth Amendment)
-23-
ANNEX I
Schedule C-1
------------
Commitments
============================================================================================================
Revolver Term A Loan Term B Loan Term C Loan Total
Lender Commitment Commitment Commitment Commitment Commitment
============================================================================================================
Foothill Capital $15,000,000 $ 0 $ 0 $ 0 $15,000,000
Corporation
============================================================================================================
Ableco Finance LLC $15,000,000 $2,400,000 $ 0 $ 0 $17,400,000
============================================================================================================
Xxxxxxxxx L.L.C. $ 0 $ 0 $7,590,000 $1,300,000 $ 8,890,000
============================================================================================================
All Lenders $30,000,000 $2,400,000 $7,590,000 $1,300,000 $41,290,000
============================================================================================================
-24-
