EXHIBIT 10.45
WAIVER AND AMENDMENT AGREEMENT
This
WAIVER AND AMENDMENT AGREEMENT (the
“
Agreement ”)
is made and effective as of April __, 2008 (the “
Effective Date ”),
by and among QPC Lasers, Inc., a Nevada corporation (the
“
Company ”),
the undersigned holders of the Company’s 10% Secured
Convertible Debentures due April 16, 2009, and warrants to acquire
shares of the Company’s common stock issued concurrently with
such debentures (collectively, the “
April Creditors ”),
and the undersigned holders of the Company’s 10% Secured
Convertible Debentures due May 22, 2009, and warrants to acquire
shares of the Company’s common stock issued concurrently with
such debentures (collectively, the “
May Creditors ”)
who are signatories hereto (the April Creditors and the May
Creditors are herein collectively referred to as the “
Creditors ”).
RECITALS
WHEREAS,
the April Creditors are parties to that certain Securities
Purchase Agreement, dated as of April 16, 2007, by and among
the Company and each holder of the Company’s 10% Secured
Debentures due April 16, 2009 (collectively, the
“
April Debenture Holders ”),
as amended by that certain Inter-Creditor, Waiver and Amendment
Agreement, dated as of May 22, 2007 (the “
Inter-Creditor Agreement ”),
by and among the Company, the April Debenture Holders and each
holder (collectively, the “
May Debenture Holders” )
of the Company’s 10% Secured Convertible Debentures due May
22, 2009 (as amended, the “
April 2007 Purchase Agreement ”),
and are holders of those 10% Secured Convertible Debentures due
April 16, 2009 (as amended by the Inter-Creditor Agreement, the
“
April 2009 Debentures ”)
in the aggregate principal amount of $8,198,369.27 executed by the
Company in favor of the April Debenture Holders.
WHEREAS,
the May Creditors are the parties to that certain Securities
Purchase Agreement, dated as of May 22, 2007 (the
“
May 2007 Purchase Agreement ”),
by and among the Company and the May Debenture Holders and are the
holders of those 10% Secured Convertible Debentures due May 22,
2009 (the “
May 2009 Debentures ”)
in the aggregate principal amount of $10,554,500 executed by the
Company in favor of the May Debenture Holders.
WHEREAS,
in connection with the financings completed in April and May,
2007, the Company issued to the April Debenture Holders and
the May Debenture Holders warrants to purchase shares of
Company’s common stock, dated April 16, 2009 (the
“
April Warrants ”)
and May 22, 2007 (the “
May Warrants ”),
respectively.
WHEREAS,
the Company is seeking to raise additional capital through the
offer and sale of convertible notes and warrants [in the an
aggregate principal amount of up to $3.5 million on
substantially the terms set forth in the term sheet attached
hereto as Exhibit A] (the “
Convertible Note Financing ”).
WHEREAS,
the parties hereto desire to enter into this Agreement to
amend certain provisions of the April 2007 Purchase Agreement,
the April 2009 Debentures, the April Warrants, the May 2007
Purchase Agreement, the May 2009 Debentures, and the May
Warrants, and grant certain waivers under the April 2009
Debentures, April Warrants, May 2009 Debentures and May
Warrants on the terms set forth herein to allow the Company to
consummate the Convertible Note Financing.
WHEREAS,
each of the April 2007 Purchase Agreement and April 2009
Debentures, and the May 2007 Purchase Agreement and May 2009
Debentures, may be amended by the April Debenture Holders and
May Debenture Holders holding at least 67% of the then
outstanding April 2009 Debentures and May 2009 Debentures,
respectively.
WHEREAS,
the April Warrant and May Warrant may be amended by holders of
at least 67% of the then outstanding April Warrants and May
Warrants, respectively.
WHEREAS,
the April Creditors and the May Creditors constitute the
holders of at least 67% of the outstanding April 2009
Debentures and April Warrants and May 2009 Debentures and May
Warrants, respectively.
NOW,
THEREFORE, in consideration of the mutual covenants herein,
their respective performances and benefits pertaining to the
Indebtedness, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
Incorporation of Recitals .
The Recitals are incorporated herein by reference.
2.
Waiver and Amendment to the April 2009Debentures
.
2.1
Waivers .
(a)
Each
April Creditor hereby consents to the Convertible Note
Financing and, solely in connection with the Convertible Note
Financing, each April Creditor hereby waives the covenants set
forth in Section 5(e)(i) and Section 5(e)(ii) of the April
2009 Debentures and any and all Events
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