AMENDMENT, CONSENT AND WAIVER
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Reference is made to: (i) that certain Intercreditor and Subordination
Agreement, dated as of January 31, 2005, by and among the undersigned parties
and the other signatories thereto (the Intercreditor Agreement"); (ii) that
certain Collateral Agency Agreement, dated as of January 31, 2005, by and among
the undersigned parties and the other signatories thereto (the "Collateral
Agency Agreement"), and (iii) those certain Subordinated Secured Promissory
Notes, dated January 31, 2005 in favor of each of the undersigned (the
"Subordinated Notes"), pursuant to which Warp Technology Holdings, Inc., a
Nevada corporation ("Warp") has agreed to pay to each of the undersigned the
amount set forth opposite the signature for each of the undersigned.
In connection with that certain Credit Agreement of even date herewith (the
"Credit Agreement") between Fortress Credit Corp. ("Fortress") and the borrowers
named therein, the undersigned hereby agree as follows:
1. The undersigned consent to the termination of the lntercreditor
Agreement and the Collateral Agency Agreement.
2. The undersigned hereby amend and restate section 2 of each
Subordinated Note to read in its entirety as follows:
"2. Maturity Date. Subject to the provisions of Section 9
below, the aggregate principal amount of this Note and accrued
but unpaid interest hereon shall be due and payable on August __
2009, provided, however, that if the Company completes a new
financing which does not create a Senior Obligation pursuant to
the Credit Agreement, is not required as a condition to making an
Advance (as defined in the Credit Agreement) under the Credit
Agreement or is not raised specifically to fund a particular
acquisition prior to August __, 2009 (an "Equity Financing"), the
holder may, after the closing of the Equity Financing, upon not
less than thirty (30) days prior written notice to the Company,
demand repayment of the balance of the Note including any
prepayment premiums required under the Note, or, if the Equity
Financing is not sufficient to repay the balance of all Company
Notes, including any prepayment premiums required under the
Company Notes, an amount equal to the amount of the Equity
Financing multiplied by a fraction, the numerator of which is the
outstanding balance of this Note and the
denominator of which is the outstanding balance of all of the
Company Notes (a "Required Early Payment"). The earlier of August
__, 2009 or the date of the Required Early Payment shall be the
"Maturity Date"."
In addition, to the Conversion Rights set forth in Section 6
of each Subordinated Note, the following additional Conversion
Right is hereby offered to the Holder and the following new
Section 6(d) is added to each Subordinated Note:
(d) In addition to the Conversion right set forth in Section
6(a), subject to the provisions hereof, the Holder hereof shall
have the right to convert this Note into (i) such number of fully
paid and non-assessable shares of Common Stock, preferred stock,
warrants and/or any other equity securities sold in an Equity
Financing. Any such conversion hereunder, shall be upon
substantially the same terms as those pursuant to which such
securities were originally sold by the Company in such Equity
Financing. The right to convert shall end upon the initial
closing under the Equity Financing. If the Holder elects to
convert under this section, the Holder will receive that number
of shares and/or other securities equivalent to the number of
shares and/or securities which the Holder would have received if
Holder had invested an amount equal to the outstanding aggregate
principal amount hereunder (plus any accrued but unpaid interest)
into such securities in such Equity Financing. If the Holder
elects to convert under this Section 6(d), the Holder shall
notify the Company in writing and shall surrender this Note at
the principal office of the Company, or such other office or
agency of the Company as it may reasonably designate by written
notice to the Holder, during normal business hours on any
Business Day. The Company shall provide the Holder with ten (10)
days written notice, prior to the initial closing under an Equity
Financing. In the event that the Holder elects to convert
hereunder, the conversion shall occur upon the initial closing of
the Equity Financing, and upon such conversion this Note shall be
deemed fully paid with no further rights owed to the Holder
hereunder.
3. The undersigned (i) consent in all respects to the transactions
contemplated by the Credit Agreement, (ii) acknowledge and agree that
the transactions contemplated by the Credit Agreement do not trigger
the anti-dilution provisions of the Subordinated Notes or of any
warrants issued in connection therewith, and (iii) waive any and all
breaches and/or defaults of the Company under the Subordinated Notes,
the Intercreditor Agreement, the Collateral Agent Agreement or
otherwise, whether or not related to the Credit Agreement and the
transactions contemplated thereby.
This document may be executed by one or more of the parties on any number
of separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
CRESTVIEW CAPITAL MASTER, LLC $2,000,000
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇
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Its: Managing Director
Date: 8/2/05
CAMOFI MASTER, LDC $500,000
By:
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Its:
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Date:
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