EXHIBIT 10.2
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SECOND AMENDMENT AND WAIVER AGREEMENT
This Second Amendment and Waiver Agreement (this "Agreement"),
is made and entered into as of April 17, 2007, by and between Western Power &
Equipment Corp., a Delaware corporation (along with its subsidiaries signatory
hereto, the "Company") and Xxxxxxxx Investment Master Fund Ltd (the "Holder").
WHEREAS, the Company, the Holder and the other investors
signatory thereto (the "Other Holders" and collectively with the Holder, the
"Holders") are parties to that certain Securities Purchase Agreement (the
"Purchase Agreement"), dated June 8, 2005, pursuant to which the Company issued
to the Holder its Series A Variable Rate Secured Convertible Debentures (the
"Debentures") with an aggregate principal amount among all Holders of
$30,000,000, of which $19,330,544.30 in principal currently remains outstanding;
WHEREAS, an "Event of Default" under the Debentures has
occurred pursuant to Section 8(a)(i) as a result of the Company's untimely
payment of the Monthly Redemption Amount due on January 1, 2007, which was
subsequently paid, and March 1, 2007, which shall be deferred pursuant to the
terms hereunder (collectively, the "Existing Defaults");
WHERAS, as a result of the occurrence of the Existing Defaults
and pursuant to the Purchase Agreement, Debentures and other agreements entered
into in connection therewith, each Holder is entitled, among other things, to
enforce its rights and remedies against the Company and against the collateral
(the "Collateral") securing the obligations thereunder (the "Obligations"),
including, without limitation, to accelerate and immediately demand payment in
full of all Obligations and foreclose on the Collateral;
WHEREAS, the parties have reached an agreement with respect to
the modification and amendment of certain terms of the Debentures relating to
the early payment of principal under the Debentures and the waiver of the
Existing Defaults, which agreement is reflected in this Agreement and in similar
agreements the Company is entering into with each Other Investor
contemporaneously with this Agreement (the "Other Agreements");
WHEREAS, the Company and each Holder desire to remove Omicron
Master Trust as Agent and to appoint Xxxxxxxx Investment Master Trust Ltd. as
Agent under the Transaction Documents; and
WHEREAS, capitalized terms used herein, but not otherwise
defined, shall have the meanings ascribed to such terms as set forth in the
Purchase Agreement.
NOW, THEREFORE, in consideration of the terms and conditions
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound hereby, agree as follows:
1. Incorporation of Preliminary Statements and Acknowledgement. The
preliminary statements set forth above by this reference hereto are hereby
incorporated into this Agreement. Without limiting the foregoing, the Company
hereby acknowledges that the Existing Defaults have occurred and are continuing
under the terms of the Debentures and, notwithstanding anything to the contrary
in this Agreement, the Purchase Agreement, the Debentures or any of the other
Transaction Documents, the Company acknowledges and agrees that upon a breach of
this Agreement by the Company, such breach
shall be an Event of Default under the Debentures and each Holder has the right
to immediately enforce payment of all of the Obligations and, in connection
therewith, without further notice, to enforce its liens on, and security
interests in, the Collateral (as defined under the Security Agreement) and real
property subject to the deed of trust granted to the Holders.
2. Waiver of Existing Defaults. The Holder hereby agrees, solely in
connection with the existence of the Existing Defaults, to waive until the
Maturity Date (as defined in the Debentures and amended hereunder) its right to
enforce payment of all of the Obligations and, in connection therewith, enforce
its liens on, and security interest in, the Collateral. Notwithstanding anything
herein to the contrary, this waiver is limited only to the Existing Defaults and
any other past or future Events of Default, including a breach of this
Agreement, shall not be deemed waived hereunder. The Holder has no knowledge of
the existence of any Events of Default other than the Existing Defaults.
3. Consideration for Waiver of Existing Defaults. In consideration for
granting the waiver set forth in Section 2 above, the Company shall provide to
the Holder each of the following:
a. CASH PAYMENT. The Company shall pay, concurrently herewith, to the
Holder, in cash, the amounts set forth next to the Holder's name on ANNEX A
attached hereto on or prior to the dates set forth therein. In the event
that the Debentures held as of the date hereof by the Holder (the "Holder's
Debentures") are paid in full pursuant to Section 4 on or prior to June 30,
2007, such amount shall be credited against the principal and interest
outstanding of the Holder's Debentures at the time of such payment. In the
event that such payment is not made prior to June 30, 2007, such payment
shall be deemed a waiver fee and shall not be applied against or offset
principal, interest or any other amounts owed to the Holder under the
Holder's Debentures or the Purchase Agreement. In the event that the
Holder's Debentures are paid in full pursuant to Section 4 on or prior to
June 30, 2007 and a determination must be made as to whether such payments
are applied against principal or interest on the Holder's Debentures, such
payments shall be made first to accrued but unpaid interest and then to
principal; and
b. INTEREST IN MINING LLC. The Company shall grant and assign the
Holder, or its designated assigns, at the election of the Holder, a
membership interest in Arizona Pacific Material, LLC, an Arizona limited
liability company (the "LLC"), equal to the percentage of membership
interest set forth next to the Holder's name on ANNEX B attached hereto.
Within 10 business days of the date hereof, the Company shall have
delivered to the Holder satisfactory evidence of such ownership in the LLC
including a duly executed Transfer Agreement, membership certificates and
any other documents reasonably requested by the Holder in connection with
the transfer of ownership thereof. The Holder hereby assigns its right to
such membership interest in the LLC to APM Acquisition Corporation, a
Delaware corporation.
IN THE EVENT THAT THE COMPANY FAILS TO DELIVER THE ITEMS IN CLAUSES A. AND
B. ABOVE WITHIN THE TIME PERIODS SET FORTH THEREIN, AN EVENT OF DEFAULT UNDER
THE HOLDER'S DEBENTURES SHALL BE DEEMED TO HAVE OCCURRED AND THE WAIVER GRANTED
IN SECTION 2 ABOVE SHALL BE NULL AND VOID AND OF NO FURTHER FORCE OR EFFECT.
4. Redemption at Option of Company. The Holder hereby consents to the
redemption in full (but not in part) of the Holder's Debentures in cash as
provided below in this Section 4. The Company shall provide the Holder with at
least 5 Trading Days' prior written notice (the "Notice of Redemption") of the
date that payment of the applicable Redemption Price (as defined herein) in full
is to be made, which date of payment must occur on or before June 30, 2007 (the
"Redemption Date"). The redemption price (the "Redemption Price") shall equal
the sum of (a) 100% of the principal amount of the Holder's Debentures
outstanding on the Redemption Date (including the Additional Debentures issued
to the Holder
pursuant to Section 5(a) and the Deferred Payments subject to Section 6 below),
(b) accrued but unpaid interest thereon through and including the Redemption
Date and (c) all other fees and other amount due in respect of the Holder's
Debentures and any Additional Debentures held by the Holder. Payment in full of
the Redemption Price in cash must be made on the Redemption Date. Up until the
date that such payment is made in full, the Holder shall have the right to
convert the Holder's Debentures pursuant to the terms thereof. Failure to make
payment of the applicable Redemption Price on the Redemption Date shall be
deemed an Event of Default under the Holder's Debentures. If the Company elects
to cause a redemption pursuant to this Section 4, then it must simultaneously
take the same action with respect to the Debentures held by the Other Investors
pursuant to Section 4 of the Other Agreements.
5. Consideration for Company Redemption Right. In consideration for
granting the redemption right set forth in Section 4 above, the Company shall
undertake the following:
a. ADDITIONAL DEBENTURES. Concurrently herewith, the Company shall
issue to each Holder a convertible debenture (collectively the "Additional
Debentures"), substantially in the form of the Debentures, with a principal
amount equal to 10% of the principal amount of Debentures outstanding and
held by such Holder on the date hereof. The principal amount of Additional
Debentures issuable to each Holder are set forth on ANNEX C attached
hereto. The rights and obligations of the Company with respect to the
Additional Debentures and the shares of Common Stock issuable pursuant to
the Additional Debentures (the "Additional Underlying Shares") shall be
identical in all respects to the rights and obligations of the Company with
respect to the Debentures and the Underlying Shares issued and issuable
pursuant to the Transaction Documents. Each Transaction Document is hereby
amended so that the term "Debentures" includes the Additional Debentures
and the term "Underlying Shares" includes the Additional Underlying Shares.
The Company acknowledges and agrees that the obligations of the Company and
its Subsidiaries under the Additional Debentures and this Agreement shall
be "Obligations" as defined under the Security Agreement and under the deed
of trust for the benefit of the Holders granting a first-position lien and
encumbrance upon certain real property owned by the LLC as required under
the Purchase Agreement. In the event of any redemption pursuant to Section
4 above and Section 4 of the Other Agreements, the Additional Debentures
must be redeemed in full along with the Debentures.
b. USE OF PROCEEDS FROM CAPITAL RAISE. After the date hereof, in the
event that the Company raises capital (in one or more financings) through
the issuance of debt or equity of any kind, the Company shall use the
proceeds raised thereunder first for the redemption in full of the
Debentures, the Additional Debentures and all amounts owing thereunder and
under the Transaction Documents and this Agreement until all such
obligations are paid in full. Any redemption pursuant to this Section 5(b)
must occur pro rata among the Holders with respect to the Debentures and
the Additional Debentures held by all the Holders.
IN THE EVENT THAT THE COMPANY FAILS TO DELIVER THE ADDITIONAL DEBENTURES
WITHIN 5 BUSINESS DAYS OF THE DATE HEREOF, AN EVENT OF DEFAULT UNDER THE
DEBENTURES SHALL BE DEEMED TO HAVE OCCURRED AND THE COMPANY REDEMPTION RIGHT SET
FORTH IN SECTION 4 SHALL BE NULL AND VOID AND OF NO FURTHER FORCE OR EFFECT.
6. Deferral of March and April Monthly Redemption Payments and April 1
Interest Payment. The Holder hereby agrees to defer until the final Maturity
Date (as defined in the Debenture and amended hereunder) its right to enforce
payment of the March 1, 2007 and April 1, 2007 Monthly Redemptions and the April
1, 2007 quarterly interest payment by the Company ("Deferred Payments").
Notwithstanding anything herein to the contrary, this waiver is limited only to
the Deferred Payments and payment of any other Monthly Redemption Amounts or
interest payment shall not be deemed waived hereunder. Payment
of the Deferred Payments shall be made on the earlier of December 31, 2007 or
the date that the Debentures are accelerated pursuant to an Event of Default or
paid sooner pursuant to a redemption hereunder or under the Debentures.
7. Amendment to Debentures. In consideration for deferring the right set
forth in Section 6 above, the definition of "Maturity Date" under the Debentures
is hereby amended such that (a) $4 million of principal, in the aggregate and
pro-rata among the Holders in relation to their the outstanding principal amount
of Debentures on June 30, 2007, (b) $3 million of principal, in the aggregate
and pro-rata among the Holders in relation to their then outstanding principal
amount of Debentures, is due and payable on October 31, 2007 and (c) the entire
principal amount of the Debentures is due and payable on December 31, 2007.
Additionally, all regularly scheduled interest payments or Monthly Redemptions
(except with respect to the Deferred Payments) required under the Debentures
shall be paid as scheduled therein. The schedule of payments to each Holder
hereunder and under the respective Debentures is set forth on ANNEX D attached
hereto.
8. Appointment of Xxxxxxxx as Agent. The appointment of Omicron Master
Trust as Agent pursuant to Section 18 of the Security Agreement or any other
provision of the Transaction Documents is hereby revoked. The appointment of
Xxxxxxxx Investment Master Trust Ltd. as Agent pursuant to Section 18 of the
Security Agreement and any other Transaction Document is immediately effective.
Xxxxxxxx Investment Master Fund Ltd. is hereby authorized to amend the currently
filed UCC-1s to add Xxxxxxxx Investment Master Fund Ltd. and Portside Growth and
Opportunity Fund as secured parties hereunder and to remove Omicron Master Trust
as a secured party.
9. RELEASE. THE COMPANY HEREBY RELEASES THE HOLDER AND ITS AFFILIATES,
OFFICERS, EMPLOYEES, DIRECTORS, MEMBERS, AGENTS AND ATTORNEYS (COLLECTIVELY, THE
"RELEASEES") FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, RESPONSIBILITIES,
DISPUTES, CAUSES OF ACTION (WHETHER AT LAW OR EQUITY) AND OBLIGATIONS OF EVERY
NATURE WHATSOEVER, WHETHER LIQUIDATED OR UNLIQUIDATED, KNOWN OR UNKNOWN, MATURED
OR UNMATURED, FIXED OR CONTINGENT (COLLECTIVELY, "CLAIMS") THAT THE COMPANY MAY
HAVE AGAINST THE RELEASEES WHICH ARISE FROM OR RELATE TO ANY ACTIONS, OR
INACTIONS WHICH THE RELEASEES MAY HAVE TAKEN PRIOR TO THE DATE HEREOF.
10. Opinion of Company Counsel. In connection with this Agreement, the
Company shall deliver to the Holder an opinion of counsel in form and substance
reasonably satisfactory to the Holder.
11. Representations and Warranties of the Company. The Company hereby
makes to the Holder the following representations and warranties:
i. Authorization; Enforcement. The Company has the requisite corporate
power and authority to enter into and to consummate the transactions
contemplated by this Agreement and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement by
the Company and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Company and no further action is required by the Company, its board of
directors or its stockholders in connection therewith other than in
connection with the Required Approvals. This Agreement has been duly
executed by the Company and, when delivered in accordance with the terms
hereof will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as
limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by
applicable law.
ii. No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not: (i) conflict with or
violate any provision of the Company's or any Subsidiary's certificate or
articles of incorporation, bylaws or other organizational or charter
documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result
in the creation of any Lien (except as contemplated by the Security
Documents) upon any of the properties or assets of the Company or any
Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or
both) of, any material agreement, credit facility, debt or other material
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
material understanding to which the Company or any Subsidiary is a party or
by which any property or asset of the Company or any Subsidiary is bound or
affected, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment,
injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including
federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected;
except in the case of each of clauses (ii) and (iii), such as could not
have or reasonably be expected to result in a Material Adverse Effect.
iii. Issuance of the Additional Debentures. The Additional Debentures
are duly authorized and, upon the execution of this Agreement by the Holder
and the Other Agreements by the Other Holders, will be duly and validly
issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company other than restrictions on transfer provided for in the
Transaction Documents. The Additional Underlying Shares, when issued in
accordance with the terms of the Additional Debentures, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The Company has reserved from its duly authorized capital
stock a number of shares of Common Stock for issuance of the Additional
Underlying Shares sufficient for the conversion in full of the Additional
Debentures.
iv. Equal Consideration. Except as set forth in this Agreement, no
consideration has been offered or paid to any person to amend or consent to
a waiver, modification, forbearance or otherwise of any provision of any of
the Transaction Documents.
v. Survival and Bring Down. All of the Company's warranties and
representations contained in this Agreement shall survive the execution,
delivery and acceptance of this Agreement by the parties hereto. The
Company expressly reaffirms that each of the representations and warranties
set forth in the Purchase Agreement, except with respect to the Existing
Defaults, continues to be true, accurate and complete, and the Company
hereby remake and incorporate herein by reference each such representation
and warranty as though made on the date of this Agreement.
12. Representations and Warranties of the Holder. The Holder represents
and warrants as of the date hereof to the Company as follows:
i. Authority. The execution, delivery and performance by the Holder of
the transactions contemplated by this Agreement have been duly authorized
by all necessary corporate or similar action on the part of the Holder.
This Agreement has been duly executed by the Holder, and when delivered by
the Holder in accordance with the terms hereof, will constitute the valid
and legally binding obligation of the Holder, enforceable against it in
accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally, (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as
indemnification and contribution provisions may be limited by applicable
law.
ii. Own Account. The Holder understands that the Additional Debentures
are "restricted securities" and have not been registered under the
Securities Act or any applicable state securities law and is acquiring
Additional Debentures as principal for its own account and not with a view
to or for distributing or reselling such Additional Debenture or any part
thereof in violation of the Securities Act or any applicable state
securities law, has no present intention of distributing any of such
Securities in violation of the Securities Act or any applicable state
securities law and has no arrangement or understanding with any other
persons regarding the distribution of such Additional Debentures (this
representation and warranty not limiting such Holder's right to sell the
Additional Underlying Shares pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws)
in violation of the Securities Act or any applicable state securities law.
The Holder is acquiring Additional Debentures hereunder in the ordinary
course of its business. The Holder does not have any agreement or
understanding, directly or indirectly, with any Person to distribute any of
the Additional Debentures or Additional Underlying Shares.
iii. Holder Status. The Holder is an "accredited investor" as defined
in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act. The Holder is not required to be registered as a broker-dealer under
Section 15 of the Exchange Act.
13. Effect on Transaction Documents. Except as expressly set forth above,
all of the terms and conditions of the Transaction Documents shall continue in
full force and effect after the execution of this Agreement and shall not be in
any way changed, modified or superseded by the terms set forth herein, including
but not limited to, any other obligations the Company may have to the Holder
under the Transaction Documents.
14. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and the
Holder.
15. Notices. Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be delivered as set forth
in the applicable Transaction Document.
16. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of the Holder. The Company may not assign (except
by merger) its rights or obligations hereunder without the prior written consent
of the Holder. The Holder may assign their respective rights hereunder in the
manner and to the Persons as permitted under the applicable Transaction
Document.
17. Execution and Counterparts. This Agreement may be executed in two or
more counterparts, all of which when taken together shall be considered one and
the same agreement and shall become effective when counterparts have been signed
by each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission or by e-mail delivery of a ".pdf" format
data file, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
or ".pdf" signature page were an original thereof.
18. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Transaction Documents.
19. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
20. Headings. The headings in this Agreement are for convenience only, do
not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
21. Effectiveness. The effectiveness of this Agreement shall be expressly
conditioned upon the Holder's receipt, on or before April 20, 2007, of copies of
the Other Agreements in form and substance satisfactory to the Holder duly
executed by all of the Other Holders; (ii) the execution and delivery by the
Company and the LLC of the Membership Interest Transfer Agreements relating to
the transfer and assignment of, in the aggregate among all such agreements, a
10% Class A Membership Interest in the LLC to the Holders, and (iii) Holder's
receipt of a certificate, dated as of the date hereof, executed by the Chief
Executive Officer of the Company certifying that no Event of Default and no
event which with the giving of notice or the passage of time (or both), would
constitute an Event of Default under the Debentures has occurred or is
continuing. No consideration was or will be offered or paid to the Other Holders
in connection with the their execution of the Other Agreements; provided,
however, that the Company shall pay concurrently herewith Xxxxxxxx Investment
Master Fund $40,000 for its administrative and legal fees and expenses.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
have executed this Agreement as of the date first set forth above.
WESTERN POWER & EQUIPMENT CORP.
By: ________________________________
Name:
Title:
WESTERN POWER & EQUIPMENT CORP.
an Oregon corporation and subsidiary
of the Company
By: ________________________________
Name:
Title:
Name of Holder: ________________________________________________________
SIGNATURE OF AUTHORIZED SIGNATORY OF HOLDER: ___________________________
Name of Authorized Signatory: __________________________________________
