AMENDMENT NO. 3
TO
CONVERTIBLE NOTE AGREEMENT
AMENDMENT NO. 3 (this "Amendment"), dated as of June 21, 2002, to
the Convertible Note Agreement, dated as of July 31, 2000, and amended as
of September 21, 2001 and January 25, 2002 (as so amended, the
"Agreement"), is by and among NEXIQ TECHNOLOGIES, INC. (f/k/a WPI Group,
Inc.), a New Hampshire corporation (the "Parent"), and each of its wholly
owned subsidiaries, WPI ELECTRONICS, INC., WPI AIRPORT II, INC. (f/k/a WPI
Magnetec, Inc.), WPI MICRO PALM, INC., WPI POWER SYSTEMS, INC., WPI
TERMIFLEX, INC., f/k/a WPI Oyster Termiflex, Inc., WPI MICRO PROCESSOR
SYSTEMS, INC. (d/b/a Nexiq Technologies), WPI DECISIONKEY, INC., WPI UK
HOLDING, INC., WPI UK HOLDING II, INC., WPI OYSTER TERMINALS, INC., AND WPI
AIRPORT I, INC. (f/k/a WPI Instruments, Inc.), each a New Hampshire
corporation, and WPI HUSKY TECHNOLOGY, INC., f/k/a WPI Husky Computers,
Inc, a Florida corporation and DIVERSIFIED SOFTWARE INDUSTRIES, INC., an
Iowa corporation (collectively, the "Subsidiary Borrowers"), all such
corporations having their chief executive offices at 0000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx except for DIVERSIFIED SOFTWARE
INDUSTRIES, INC., which has its chief executive offices at 0000 Xxxxx
Xxxxx, Xxxxxxxxxx, XX (the Parent and Subsidiary Borrowers are hereinafter
referred to individually as a "Borrower" and collectively as the
"Borrowers"), and SUNRISE CAPITAL PARTNERS, L.P., a Delaware limited
partnership (the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers and the Lender are parties to the
Agreement, pursuant to which the Lender has purchased from the Borrowers
(i) certain convertible promissory notes, (ii) certain shares of common
stock of Parent, and (iii) certain warrants representing the right to
purchase shares of Parent's common stock; and
WHEREAS, the Borrowers and the Lender desire to amend the
Agreement to provide for the purchase by the Lender of certain additional
notes as described herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrowers and the Lender hereby agree as
follows:
SECTION 1 Definitions. Capitalized terms used herein but not
otherwise defined herein shall have the meanings ascribed thereto in the
Agreement.
SECTION 2 Amendments to Agreement. Upon execution of this
Amendment, the Agreement is hereby amended as follows:
SECTION 2.1 Purchase and Sale of Securities. Section 1.1
of the Agreement is hereby amended by inserting the following additional
subsection after subsection (i):
"(j) Subject to the terms and conditions hereof: (i) on
the Amendment No. 3 Effective Date, the Lender shall purchase from
the Borrowers, and the Borrowers shall sell to the Lender, an
aggregate principal amount of $500,000 of the Term G Bridge Notes
(as defined below) for an aggregate purchase price of $500,000
(the "Initial Term G Sale"); and (ii) at any time during the Term
G Commitment Period, the Borrowers may, in their discretion, sell
to the Lender, in one or more tranches, additional Term G Bridge
Notes. Except with respect to the Initial Term G Sale, the
Borrowers shall notify the Lender of their desire to sell Term G
Bridge Notes by delivery to the Lender of a written notice (the
"Term G Notice") informing the Lender that the Borrowers are
exercising their ability to sell such notes to the Lender. The
Term G Notice shall set forth (i) the aggregate principal amount
of Term G Bridge Notes that the Borrowers wish to sell, which
amount shall not be less than $250,000, and (ii) the date of the
sale, which date shall be prior to the termination of the Term G
Commitment Period and at least three Business Days after receipt
by Lender of such Term G Notice. On the date specified in the Term
G Notice, the Lender shall purchase from the Borrowers, and the
Borrowers shall sell to the Lender, the Term G Bridge Notes for an
aggregate purchase price equal to the principal amount of Term G
Bridge Notes.
As used in this Agreement, "Term G Bridge Notes" means
the promissory notes of the Borrowers, substantially in the form
as attached hereto as Exhibit A-4, in aggregate principal amount
not to exceed $3,000,000 (each, a "Term G Bridge Note")."
SECTION 2.2 Repayment of the Term G Bridge Notes. Article
1 of the Agreement is hereby amended by inserting the following additional
Sections after Section 1.2:
"1.2A Scheduled Repayment of the Term G Bridge Notes. The
Borrowers shall repay the entire outstanding principal amount of
the Term G Bridge Notes, together with any accrued but unpaid
interest and Fees thereon, on November 30, 2002 (the "Term G
Maturity Date"), if not sooner repaid in full. The Borrowers shall
not be entitled to re-borrow all or any portion of the
indebtedness represented by the Term G Bridge Notes which shall be
paid or repaid at any time.
1.2B Allocation of Repayment Amounts. Subject to
compliance with the provisions of the Subordination Agreement,
from and after the Amendment No. 3 Effective Date, any amounts
received by the Lender in respect of any outstanding principal
balance on the Notes or the Term G Bridge Notes or any accrued but
unpaid interest thereon and Fees with respect thereto shall be
allocated: (i) to the repayment of Fees in respect of and accrued
but unpaid interest on the Term G Bridge Notes; (ii) to the extent
a portion of such amounts remains after the application of (i), to
the repayment of principal on the Term G Bridge Notes; (iii) to
the extent a portion of such amounts remains after the application
of (i) and (ii), to the repayment of Fees in respect of and
accrued but unpaid interest on the Notes; and (iv) to the extent a
portion of such amounts remains after the application of (i), (ii)
and (iii), to the repayment of principal on the Notes."
SECTION 2.3 Use of Proceeds. Section 1.3 of the Agreement
is hereby amended by inserting the following sentence at the end of such
section:
"Borrowers shall utilize the proceeds of the Initial Term G Sale
to repay in full the $500,000 forbearance fee due and payable on
June 24, 2002 by the Borrowers under the Second Forbearance
Agreement, dated as of September 21, 2001, by and between the
Borrowers and Fleet National Bank, Key Corporate Capital Inc.,
Sovereign Bank and Bank of New Hampshire, N.A. (collectively, the
"Banks"). Borrowers shall utilize any additional proceeds from the
sale of Term G Bridge Notes for the repayment of any additional
obligations and/or the financing of working capital needs and
general corporate purposes."
SECTION 2.4 Interest on the Notes. Section 1.4(e) of the
Agreement is hereby amended by inserting the following after the words "and
all outstanding Obligations":
", except those in respect of the Term G Bridge Notes,"
SECTION 2.5 Interest on the Term G Bridge Notes. Article
1 of the Agreement is hereby amended by inserting the following additional
Section after Section 1.4:
"1.4A Interest on the Term G Bridge Notes.
(a) The outstanding principal balance of the Term G
Bridge Notes shall accrue and bear interest at a rate per annum
equal to the Prime Rate (as defined below) plus 6.0% (for each
day, the "Term G Interest Rate"). "Prime Rate" shall mean, for any
day, a floating rate equal to the higher of (i) the rate publicly
quoted from time to time by The Wall Street Journal as the "base
rate on corporate loans at large U.S. money center commercial
banks" (or, if The Wall Street Journal ceases quoting a base rate
of the type described, the highest per annum rate of interest
published by the Federal Reserve Board in Federal Reserve
statistical release H. 15 (519) entitled "Selected Interest Rates"
as the Bank prime loan rate or its equivalent), and (ii) the
Federal Funds Rate plus fifty (50) basis points per annum. Each
change in any interest rate provided for in this Agreement based
upon the Prime Rate shall take effect at the time of such change
in the Prime Rate.
(b) All interest owing on the Term G Bridge Notes shall
be payable in cash by Borrowers to Lender on the Term G Maturity
Date.
(c) If any payment on the Term G Bridge Notes (including
payment of interest and Fees) becomes due and payable on a day
other than a Business Day, the maturity thereof will be extended
to the next succeeding Business Day and, with respect to payments
of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(d) All computations of interest and Fees calculated on a
per annum basis shall be made by the Lender on the basis of a
three hundred and sixty-five (365) day year, in each case for the
actual number of days occurring in the period for which such
interest and Fees are payable.
(e) So long as any Event of Default shall have occurred
and be continuing, the interest rates applicable to the Term G
Bridge Notes shall be increased by two percentage points (2.0%)
per annum above the rates of interest or the rate of such Fees
otherwise applicable hereunder ("Term G Default Rate"), and all
outstanding Obligations in respect of the Term G Bridge Notes
shall bear interest at the Term G Default Rate applicable to such
Obligations. Interest at the Term G Default Rate shall accrue from
the initial date of such Event of Default until that Event of
Default is cured or waived and shall be payable upon demand.
(f) Notwithstanding anything to the contrary set forth in
this Section 1.4A, if a court of competent jurisdiction determines
in a final order that the rate of interest payable on the Term G
Bridge Notes exceeds the Maximum Lawful Rate, then so long as the
Maximum Lawful Rate would be so exceeded, the rate of interest
payable on the Term G Bridge Notes shall be equal to the Maximum
Lawful Rate; provided, however, that if at any time thereafter the
rate of interest payable hereunder is less than the Maximum Lawful
Rate, Borrowers shall continue to pay interest hereunder at the
Maximum Lawful Rate until such time as the total interest received
by the Lender is equal to the total interest which would have been
received had the interest rate payable on the Term G Bridge Notes
been (but for the operation of this paragraph) the interest rate
payable since the Amendment No. 3 Effective Date as otherwise
provided in this Agreement. Thereafter, interest on the Term G
Bridge Notes shall be paid at the rate(s) of interest and in the
manner provided in Sections 1.4A(a) through (e) above, unless and
until the rate of interest again exceeds the Maximum Lawful Rate,
and at that time this paragraph shall again apply. In no event
shall the total interest received by the Lender pursuant to the
terms hereof exceed the amount which the Lender could lawfully
have received had the interest due on the Term G Bridge Notes been
calculated for the full term hereof at the Maximum Lawful Rate. If
the Maximum Lawful Rate is calculated pursuant to this paragraph,
such interest shall be calculated at a daily rate equal to the
Maximum Lawful Rate divided by the number of days in the year in
which such calculation is made. If, notwithstanding the provisions
of this Section 1.4A(f), a court of competent jurisdiction shall
finally determine that the Lender has received interest on the
Term G Bridge Notes in excess of the Maximum Lawful Rate, the
Lender shall, to the extent permitted by applicable law, promptly
apply such excess to repay the principal amount of the Term G
Bridge Notes and thereafter shall refund any excess to Borrowers
or as a court of competent jurisdiction may otherwise order."
SECTION 2.6 Fees. Section 1.5 of the Agreement is hereby
amended by inserting the following additional subsection after Section
1.5(c):
"(d) Subject to compliance with the provisions of the
Subordination Agreement, Borrowers shall pay to Lender (or to such
party or parties as Lender may designate) in cash on the Term G
Maturity Date a fee equal to 10.0% of the Term G Aggregate Amount
(as defined below); provided, however, that if the Term G
Aggregate Amount and all interest owing thereon shall have been
paid in full to Lender prior to October 31, 2002, then the fee
payable by Borrowers under this Section 1.5(d) shall be 5% of the
Term G Aggregate Amount. The "Term G Aggregate Amount" shall mean
the aggregate principal amount of Term G Bridge Notes sold by the
Borrowers to Lender during the Term G Commitment Period (including
the amount sold in the Initial Term G Sale)."
SECTION 2.7 Prepayments. Section 1.6 of the Agreement is
hereby amended as follows:
(a) The following sentence shall be inserted at
the end of Section 1.6(a):
"Following Payment in Full by the Borrowers of the Senior Debt (as
each term is defined in the Subordination Agreement), Borrowers
may prepay, in accordance with Section 1.2B hereof, any Fees in
respect of the Term G Bridge Notes, accrued but unpaid interest on
the Term G Bridge Notes or principal amount of the Term G Bridge
Notes before the Term G Maturity Date without prior written
consent of the Lender."
(b) Section 1.6(b)(ii) is hereby amended by
deleting clause (C) thereof entirely and replacing it with the following:
"(C) third, to the extent of the balance of such Net Cash Proceeds
remaining after application in accordance with clauses (A) and
(B), to offer to repurchase the Term G Bridge Notes from the
Lender in accordance with the provisions of paragraph (c) of this
Section 1.6; and (D) fourth, to the extent of the balance of such
Net Cash Proceeds remaining after application in accordance with
clauses (A), (B) and (C), to offer to repurchase the Notes from
the Lender in accordance with the provisions of paragraph (c) of
this Section 1.6."
(c) Section 1.6(b)(iii) is hereby amended by
deleting clause (B) thereof and all language thereof following clause (B)
entirely and replacing it with the following:
"(B) second, to the extent of the balance of such Net Cash
Proceeds remaining after application in accordance with clause
(A), to offer to repurchase the Term G Bridge Notes from the
Lender in accordance with the provisions of paragraph (c) of this
Section 1.6.; and (C) third, to the extent of the balance of such
Net Cash Proceeds remaining after application in accordance with
clauses (A) and (B), to offer to repurchase the Notes from the
Lender in accordance with the provisions of paragraph (c) of this
Section 1.6.; provided, that repayments or offers to repurchase
pursuant to this clause (iii) shall only be made to the extent
such proceeds from the sale or issuance of Stock exceed
$1,000,000."
SECTION 2.8. Conditions to the Purchase of Securities.
Article 3 of the Agreement is hereby amended by inserting the following
additional Sections after Section 3.6:
"3.7. Conditions to the Initial Purchase of Term G Bridge Notes.
The obligation of the Lender to purchase an aggregate
principal amount of $500,000 of the Term G Bridge Notes on the
Amendment No. 3 Effective Date and to perform any other
obligations hereunder on the Amendment No. 3 Effective Date shall
be subject to the satisfaction of, or waiver by the Lender of, the
following conditions on or before the Amendment No. 3 Effective
Date:
(a) Third Forbearance Agreement. The Lender shall have
received a fully executed copy, in form and substance satisfactory
to the Lender, of the Third Forbearance Agreement, by and between
the Borrowers and the Banks, whereby the Banks agree to forbear
from exercising certain rights and remedies against the Borrowers
prior to the Term G Maturity Date.
(b) Material Adverse Effect. There shall not have
occurred a Material Adverse Effect on any of the Borrowers, or any
event reasonably likely to result in a Material Adverse Effect on
any of the Borrowers, since March 31, 2002, and there shall not be
any material inaccuracy in the financial statements as of, and for
the period ended March 31, 2002, as included in the Parent's most
recent quarterly report on Form 10-Q.
(c) Representations and Warranties. Each of the
representations and warranties of the Borrowers contained in this
Agreement that is qualified as to Material Adverse Effect shall be
true and correct, and each of the representations and warranties
of the Borrowers contained in this Agreement that is not so
qualified shall be true and correct in all material respects, at
and as of such date except to the extent that such representations
and warranties relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in
all material respects as of such earlier date as if made at and as
of such date.
(d) Compliance with the Terms and Conditions of this
Agreement; No Default. Each of the Borrowers shall have duly and
properly performed and complied with all of the agreements,
covenants and obligations set forth herein that are required to be
performed or complied with by such Borrower on or before such
date, and no Default or Event of Default shall have occurred and
be continuing on such date or would result after giving effect to
the Initial Term G Sale.
(e) Delivery of Term G Bridge Notes. The Borrowers shall
have delivered to the Lender certificates evidencing $500,000
aggregate principal amount of the Term G Bridge Notes.
(f) Officer's Certificate. The Borrowers shall have
delivered to the Lender a certificate executed by (a) the Chairman
of the Board or the President or one of the Vice Presidents of the
Parent and (b) the Treasurer or one of the Assistant Treasurers of
the Parent, in substantially the form as annexed hereto as Exhibit
F-2, certifying on behalf of each of the Borrowers that the
conditions specified in this Section 3.7 have been fulfilled.
(g) Secretary's Certificate. Lender shall have received a
certificate from the Borrowers, signed by the Secretary or
Assistant Secretary of each such Borrower, certifying (i) the
resolutions duly adopted by the Boards of Directors of each
Borrower approving the execution by the Borrowers of this
Amendment, and the performance by the Borrowers of their
respective obligations hereunder, and (ii) that the copies of the
Articles of Incorporation and bylaws of each such Borrower
provided to the Lender as of the Closing Date have not been
amended and remain in full force and effect as of the Amendment
No. 3 Effective Date, except as set forth on such certificate.
(h) Opinion of Counsel. The Lender shall have received an
opinion of counsel to the Borrowers, dated as of the Amendment No.
3 Effective Date, substantially in the form of Exhibit K-2 hereto.
The acceptance by the Borrower Representative of the
proceeds of the Initial Term G Sale shall be deemed to constitute,
as of the date of such request or acceptance, a reaffirmation by
the Borrowers of the granting and continuance of the Lender's
Liens pursuant to the Collateral Documents.
3.8 Conditions to the Purchase of Additional Term G Bridge Notes.
Except with respect to the Initial Term G Sale, the
obligation of the Lender to purchase Term G Bridge Notes and to
perform any obligations shall be subject to the satisfaction of,
or waiver by the Lender of, the following conditions:
(a) Representations and Warranties. Each of the
representations and warranties of the Borrowers contained in this
Agreement that is qualified as to Material Adverse Effect shall be
true and correct, and each of the representations and warranties
of the Borrowers contained in this Agreement that is not so
qualified shall be true and correct in all material respects, at
and as of such date except to the extent that such representations
and warranties relate solely to an earlier date, in which case
such representations and warranties shall be true and correct in
all material respects as of such earlier date as if made at and as
of such date.
(b) Compliance with the Terms and Conditions of this
Agreement; No Default. Each of the Borrowers shall have duly and
properly performed and complied with all of the agreements,
covenants and obligations set forth herein that are required to be
performed or complied with by such Borrower on or before such
date, and no Default or Event of Default shall have occurred and
be continuing on such date or would result after giving effect to
the sale of the Term G Bridge Notes.
(c) No Material Adverse Effect. There shall not have
occurred a Material Adverse Effect on any of the Borrowers, or any
event reasonably likely to result in a Material Adverse Effect on
any of the Borrowers, since March 31, 2002, and there shall not be
any material inaccuracy in the financial statements as of, and for
the period ended, such date included in the Parent's then most
recent quarterly report on Form 10-Q.
(d) Initial Sale of Term G Bridge Notes. An aggregate
principal amount of $500,000 of the Term G Bridge Notes shall have
been purchased by the Lender on the Amendment No. 3 Effective
Date.
(e) Delivery of Additional Term G Bridge Notes. The
Borrowers shall have delivered to the Lender certificates
evidencing the Term G Bridge Notes to be purchased by Lender.
The acceptance by the Borrower Representative of the
proceeds of the sale of Term G Bridge Notes shall be deemed to
constitute, as of the date of such request or acceptance, (i) a
representation and warranty by Borrowers that the conditions in
this Section 3.8 have been satisfied and (ii) a reaffirmation by
the Borrowers of the granting and continuance of the Lender's
Liens pursuant to the Collateral Documents."
SECTION 2.9 Termination. Section 8.1 is hereby amended by
inserting the following after the words "all other Obligations":
"not due and payable prior thereto"
SECTION 2.10 Survival of Obligations Upon Termination of
Financing Arrangements. Section 8.2 is hereby amended by deleting the words
"under Sections 1.2, 1.4 and 1.5" and replacing such words with the
following:
"under Sections 1.2, 1.2A, 1.4, 1.4A and 1.5"
SECTION 2.11 Events of Default. Section 9.1(b) is hereby
amended by inserting the following after the words "of Sections 1.4,":
"1.4A,"
SECTION 2.12 Remedies. Section 9.2(a) is hereby amended
by inserting the following at the end of the sentence:
"and/or increase the rate of interest applicable to the Term G
Bridge Notes to the Term G Default Rate as provided in Section
1.4A(e)"
SECTION 2.13. Amendment to Annex A (Definitions). Annex A of
the Agreement is hereby amended as follows:
(a) Amendment No. 3 Effective Date. Annex A of
the Agreement is hereby amended by inserting the following additional
definition after the definition of "Amendment No. 2 Effective Date":
"'Amendment No. 3 Effective Date' shall mean the
date of execution of Amendment No. 3 to the
Agreement."
(b) Banks. Annex A of the Agreement is hereby
amended by inserting the following additional definition after the
definition of "Appendices":
"'Banks' shall have the meaning assigned to it
in Section 1.3 of the Agreement."
(c) Federal Funds Rate; Federal Reserve Board.
Annex A of the Agreement is hereby amended by inserting the following
additional definitions after the definition of "Existing Senior Credit
Facility":
"'Federal Funds Rate' shall mean, for any day, a
floating rate equal to the weighted average of
the rates on overnight Federal funds
transactions among members of the Federal
Reserve System, as determined by Lender."
"'Federal Reserve Board' shall mean the Board of
Governors of the Federal Reserve System, or any
successor thereto."
(d) Initial Term G Sale. Annex A of the
Agreement is hereby amended by inserting the following additional
definition after the definition of "Initial Conversion Price":
"'Initial Term G Sale' shall have the meaning
assigned to it in Section 1.1(j) of the
Agreement."
(e) Notes. The definition of "Notes" in Annex A
of the Agreement is hereby amended and restated in its entirety to provide
as follows:
"Except as set forth in the following sentence,
'Notes' shall mean the Term A Notes, the Term B
Notes, the Term C Notes, the Term D Notes, the
Term E Notes, the Term F Notes and the PIK
Notes, collectively. Solely in Sections 1.5(c),
1.6(c), 1.8, 1.9, 1.11(a), 1.12, 4.11, 4.24,
6.10, 7.3, 7.5, 8.2, 9.1(a), 9.2(b), 10.1(a),
10.1(b), 10.1(c), 12.2, 12.3, 12.8, 12.13 and
12.16 of this Agreement and in the meanings of
the terms 'Material Adverse Effect,' 'Note
Documents,' 'Obligations' and 'Termination Date'
set forth in Annex A of this Agreement, 'Notes'
shall mean the Term A Notes, the Term B Notes,
the Term C Notes, the Term D Notes, the Term E
Notes, the Term F Notes, the PIK Notes and the
Term G Bridge Notes, collectively."
(f) Prime Rate. Annex A of the Agreement is
hereby amended by inserting the following additional definition after the
definition of "Pledge Agreement":
"'Prime Rate' shall have the meaning assigned to
it in Section 1.4A(a) of the Agreement."
(g) Securities. The definition of "Securities"
in Annex A of the Agreement is hereby amended and restated in its entirety
to provide as follows:
"'Securities' shall mean the Term A Securities,
the Term B Securities, the Term C Securities,
the Term D Securities, the Term E Securities,
the Term F Securities, the Term G Bridge Notes
and any other Notes issued pursuant to the
Agreement."
(h) Subordination Agreement. Annex A of the
Agreement is hereby amended by inserting the following additional
definition after the definition of "Stockholders Agreement":
"'Subordination Agreement' shall mean the
Amended and Restated Subordination Agreement,
dated as of September 21, 2001, as amended from
time to time, by and among the Borrowers, the
Lender and the Banks."
(i) Term G Aggregate Amount; Term G Bridge
Notes; Term G Commitment Period; Term G Default Rate; Term G Interest Rate;
Term G Maturity Date; Term G Notice. Annex A of the Agreement is hereby
amended by inserting the following additional definitions after the
definition of "Term F Warrants":
"'Term G Aggregate Amount' shall have the
meaning assigned to it in Section 1.5(d) of the
Agreement."
"'Term G Bridge Notes' shall have the meaning
assigned to it in Section 1.1(j) of the
Agreement."
"'Term G Commitment Period' shall mean the
period beginning on the Amendment No. 3
Effective Date and ending on November 30, 2002."
"'Term G Default Rate' shall have the meaning
assigned to it in Section 1.4A(e) of the
Agreement."
"'Term G Interest Rate' shall have the meaning
assigned to it in Section 1.4A(a) of the
Agreement."
"'Term G Maturity Date' shall have the meaning
assigned to it in Section 1.2A of the
Agreement."
"'Term G Notice' shall have the meaning assigned
to it in Section 1.1(j) of the Agreement."
SECTION 3. Agreement. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. From and after the date on which
this Amendment becomes effective, the terms "Agreement," "this Agreement,"
"herein," "hereinafter," "hereto," and words of similar import used in the
Agreement shall, unless the context otherwise requires, mean and refer to
the Agreement as amended hereby.
SECTION 4. Expenses. Without limiting the provisions of Section
12.3 of the Agreement, the Borrowers shall reimburse Lender for all
out-of-pocket expenses incurred in connection with the preparation of this
Amendment and the Note Documents (including the reasonable fees and
expenses of all of its counsel, advisors, consultants and auditors retained
in connection herewith and the transactions contemplated hereby).
SECTION 5. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 6. Full Force and Effect. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants, and
conditions of the Agreement and each other Note Document shall remain
unchanged and shall remain in full force and effect in accordance with
their respective terms. The amendments set forth herein shall be limited
precisely as provided for herein to the provisions expressly amended herein
and shall not be deemed to be an amendment of, consent to or modification
of any other term or provision of the Agreement or of any term or provision
of any other Note Document or of any transaction or further or future
action on the part of the Borrowers which would require the consent of the
Lenders under the Agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND TO BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION 8. Counterparts. This Amendment may be executed in any
number of counterparts by the parties hereto, each of which counterparts
when so executed shall be an original, but all the counterparts shall
together constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Amendment No. 3 has been duly executed as
of the date first written above.
BORROWERS:
NEXIQ TECHNOLOGIES, INC.,
WPI POWER SYSTEMS, INC.,
WPI AIRPORT II, INC.,
WPI ELECTRONICS, INC.,
WPI TERMIFLEX, INC.,
WPI MICRO PALM, INC.,
WPI MICRO PROCESSOR SYSTEMS, INC.,
WPI DECISIONKEY, INC.,
WPI UK HOLDING, INC.,
WPI UK HOLDING II, INC.,
WPI OYSTER TERMINALS, INC.,
WPI HUSKY TECHNOLOGY, INC.,
WPI AIRPORT I, INC., and
DIVERSIFIED SOFTWARE INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Chief Executive Officer
THE LENDER:
SUNRISE CAPITAL PARTNERS, L.P.
By: Sunrise Advisors, LLC,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxxx X. Xxxxx
Title: Senior Principal
