WFII » Topics » RECITALS

These excerpts taken from the WFII 8-K filed Jul 3, 2008.

RECITALS

 

WHEREAS, reference is made to that certain First Lien Credit Agreement, dated as of December 31, 2007 (as amended from time to time, the “Credit Agreement”; capitalized terms used herein without definition have the meanings ascribed to such terms in the Credit Agreement), among Borrower, KeyBank National Association, as administrative agent and issuing lender thereunder, and the lenders party thereto;

 

WHEREAS, Borrower has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement to allow for certain additional add-backs to Consolidated EBITDA (as included in the Borrower’s computation of the Maximum First Lien Leverage Ratio, Maximum Total Leverage Ratio, the Minimum Fixed Charge Coverage Ratio and Minimum Consolidated EBITDA covenants set forth in Sections 7.12(a), (b), (d) and (e));

 

WHEREAS, Borrower has further requested that the Lenders approve the Unsecured Subordinated Convertible Notes issued by SYS, which will be a Subsidiary of the Borrower upon the consummation of the Acquisition of SYS by the Borrower, in the face amount of $3,125,000 (collectively the “Subordinated Notes”) as Subordinated Debt for purposes of Section 7.1(f) of the Credit Agreement; and

 

WHEREAS, subject to the terms and conditions hereof, the Administrative Agent and the Lenders have agreed to make such requested amendments to the Credit Agreement and approve such Subordinated Notes;

 

RECITALS

 

WHEREAS, reference is made to that certain Second Lien Credit Agreement, dated as of December 31, 2007 (as amended from time to time, the “Credit Agreement”; capitalized terms used herein without definition have the meanings ascribed to such terms in the Credit Agreement), among Borrower, KeyBank National Association, as administrative agent and issuing lender thereunder, and the lenders party thereto;

 

WHEREAS, Borrower has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement to allow for certain additional add-backs to Consolidated EBITDA (as included in the Borrower’s computation of the Maximum First Lien Leverage Ratio, Maximum Total Leverage Ratio, the Minimum Fixed Charge Coverage Ratio and Minimum Consolidated EBITDA covenants set forth in Sections 7.12(a), (b), (d) and (e));

 

WHEREAS, Borrower has further requested that the Lenders approve the Unsecured Subordinated Convertible Notes issued by SYS, which will be a Subsidiary of the Borrower upon the consummation of the Acquisition of SYS by the Borrower, in the face amount of $3,125,000 (collectively the “Subordinated Notes”) as Subordinated Debt for purposes of Section 7.1(f) of the Credit Agreement;

 

WHEREAS, subject to the terms and conditions hereof, the Administrative Agent and the Lenders have agreed to make such requested amendments to the Credit Agreement and approve such Subordinated Notes;

 

These excerpts taken from the WFII 8-K filed Apr 2, 2008.

RECITALS

 

WHEREAS, reference is made to that certain First Lien Credit Agreement, dated as of December 31, 2007 (as amended from time to time, the “Credit Agreement”; capitalized terms used herein without definition have the meanings ascribed to such terms in the Credit Agreement), among Borrower, KeyBank National Association, as administrative agent and issuing lender thereunder, and the lenders party thereto;

 

WHEREAS, Borrower has notified the Administrative Agent and the Lenders that, as a result of charges being taken in connection with certain payments to be made by Borrower in respect of (a) the settlement of Borrower’s existing class action litigation related to certain restatements of its financial statements, originally filed in August 2004 and consolidated as In re Wireless Facilities, Inc. Securities Litigation, Master File No. 04-CV-1589-JAH, (b) the settlement of Borrower’s existing class action litigation related to Borrower’s March 12, 2007 public announcement of an internal review of its stock option granting processes, originally filed in March and April 2007 and consolidated as In re Wireless Facilities, Inc. Securities Litigation II, Master File No. 07-CV-0482-BTM-NLS and (c) the estimated settlement amount in connection with (i) Borrower’s existing derivative lawsuits originally filed in August and September 2004 and consolidated as In re Wireless Facilities, Inc. Derivative Litigation, Lead Case No. GIC 834253, (ii) Borrower’s existing derivative lawsuits originally filed in 2004 and consolidated as In re Wireless Facilities, Inc. Derivative Litigation, Lead Case No. 04-CV-1663-JAH and (iii) Borrower’s existing derivative lawsuit originally filed in April 2007, Hameed v. Tayebi, Case No. 07-CV-0680-BTM-RBB (such payments, collectively, the “Securities and Derivative Litigation Settlement”), Borrower will not comply with the Minimum EBITDA covenant set forth in Section 7.12(e) of the Credit Agreement for the fiscal quarter ending as of December 31, 2007, and has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement to (i) allow for the add-back of such charges in the calculation of Consolidated EBITDA (as included in the Borrower’s computation of the Maximum First Lien Leverage Ratio, Maximum Total Leverage Ratio, the Minimum Fixed Charge Coverage Ratio and Minimum Consolidated EBITDA covenants set forth in Sections 7.12(a), (b), (d) and (e)) and (ii) take account of accrued liabilities in connection with the Securities and Derivative Litigation Settlement in calculating the Liquidity Ratio for purposes of the Minimum Liquidity Ratio covenant set forth in Section 7.12(c);

 



 

WHEREAS, subject to the terms and conditions hereof, the Administrative Agent and the Lenders have agreed to make such requested amendments to the Credit Agreement;

 

WHEREAS, Borrower has further notified the Administrative Agent and the Lenders that (i) Borrower has received and expects to continue to receive certain payments on account of judgment in a lawsuit filed by Borrower against its former employee, Vencent Donlan (such payments, collectively, the “Donlan Recovery”), (ii) Borrower is currently in negotiations with one of its insurance carriers for recovery of certain amounts also related to matters involving Vencent Donlan (such amounts, to the extent paid, the “Donlan Insurance Proceeds”) and (iii) Borrower is currently seeking contributions and/or funding from external sources for the purpose of funding in part the Securities and Derivative Litigation Settlement and/or related costs, which contribution or other funding may take the form of an equity contribution, a direct contribution or as settlement of outstanding litigation and/or related costs  (any such contribution or funding, to the extent received by Borrower, the “External Contribution”);

 

WHEREAS, the parties hereto acknowledge that (i) the Donlan Recovery constitutes an Extraordinary Receipt and is required to be used to prepay Loans pursuant to Section 2.4(b)(vi) of the Credit Agreement, (ii) the Donlan Insurance Proceeds, to the extent received by the Company, will constitute Net Insurance/Condemnation Proceeds and will be required to prepay Loans pursuant to Section 2.4(b)(ii) of the Credit Agreement and (iii) the External Contribution, depending on its form, may constitute an amount required to be used to prepay Loans pursuant to Section 2.4(b) of the Credit Agreement;

 

WHEREAS, subject to the terms and conditions set forth below, the Administrative Agent and the Lenders have agreed (i) to temporarily suspend the application of Section 2.4(b)(vi) of the Credit Agreement to the Donlan Recovery, (ii) to the extent Borrower receives any portion of the Donlan Insurance Proceeds, to waive the application of Section 2.4(b)(ii) to such Donlan Insurance Proceeds and (iii) to the extent Borrower receives the External Contribution, to waive the application of any applicable provisions of Section 2.4(b) to the External Contribution; and

 

WHEREAS, Borrower, Administrative Agent and the Lenders have further agreed to amend the Credit Agreement to make certain changes to the definitions of “Base Rate” and “Offshore Rate”.

 

RECITALS

 

WHEREAS, reference is made to that certain Second  Lien Credit Agreement, dated as of December 31, 2007 (as amended from time to time, the “Credit Agreement”; capitalized terms used herein without definition have the meanings ascribed to such terms in the Credit Agreement), among Borrower, KeyBank National Association, as administrative agent and issuing lender thereunder, and the lenders party thereto;

 

WHEREAS, Borrower has notified the Administrative Agent and the Lenders that, as a result of charges being taken in connection with certain payments to be made by Borrower in respect of (a) the settlement of Borrower’s existing class action litigation related to certain restatements of its financial statements, originally filed in August 2004 and consolidated as In re Wireless Facilities, Inc. Securities Litigation, Master File No. 04-CV-1589-JAH, (b) the settlement of Borrower’s existing class action litigation related to Borrower’s March 12, 2007 public announcement of an internal review of its stock option granting processes, originally filed in March and April 2007 and consolidated as In re Wireless Facilities, Inc. Securities Litigation II, Master File No. 07-CV-0482-BTM-NLS and (c) the estimated settlement amount in connection with (i) Borrower’s existing derivative lawsuits originally filed in August and September 2004 and consolidated as In re Wireless Facilities, Inc. Derivative Litigation, Lead Case No. GIC 834253, (ii) Borrower’s existing derivative lawsuits originally filed in 2004 and consolidated as In re Wireless Facilities, Inc. Derivative Litigation, Lead Case No. 04-CV-1663-JAH and (iii) Borrower’s existing derivative lawsuit originally filed in April 2007, Hameed vs. Tayebi, Case No. 07-CV-0680-BTM-RBB (such payments, collectively, the “Securities and Derivative Litigation Settlement”), Borrower will not comply with the Minimum EBITDA covenant set forth in Section 7.12(e) of the Credit Agreement for the fiscal quarter ending as of December 31, 2007, and has requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement to (i) allow for the add-back of such charges in the calculation of Consolidated EBITDA (as included in the Borrower’s computation of the Maximum First Lien Leverage Ratio, Maximum Total Leverage Ratio, the Minimum Fixed Charge Coverage Ratio and Minimum Consolidated EBITDA covenants set forth in Sections 7.12(a), (b), (d) and (e)) and (ii) take account of accrued liabilities in connection with the Securities and Derivative Litigation Settlement in calculating the Liquidity Ratio for purposes of the Minimum Liquidity Ratio covenant set forth in Section 7.12(c);

 



 

WHEREAS, subject to the terms and conditions hereof, the Administrative Agent and the Lenders have agreed to make such requested amendments to the Credit Agreement;

 

WHEREAS, Borrower has further notified the Administrative Agent and the Lenders that (i) Borrower has received and expects to continue to receive certain payments on account of judgment in a lawsuit filed by Borrower against its former employee, Vencent Donlan (such payments, collectively, the “Donlan Recovery”), (ii) Borrower is currently in negotiations with one of its insurance carriers for recovery of certain amounts also related to matters involving Vencent Donlan (such amounts, to the extent paid, the “Donlan Insurance Proceeds”), and (iii) Borrower is currently seeking contributions and/or funding from external sources for the purpose of funding in part the Securities and Derivative Litigation Settlement and/or related costs, which contribution or other funding may take the form of an equity contribution, a direct contribution or as settlement of outstanding litigation and/or related costs (any such contribution or funding, to the extent received by Borrower, the “External Contribution”);

 

WHEREAS, the parties hereto acknowledge that (i) the Donlan Recovery constitutes an Extraordinary Receipt and is required to be used to prepay Loans pursuant to Section 2.3(b)(vi) of the Credit Agreement, (ii) the Donlan Insurance Proceeds, to the extent received by the Company, will constitute Net Insurance/Condemnation Proceeds and will be required to prepay Loans pursuant to Section 2.3(b)(ii) of the Credit Agreement, and (iii) the External Contribution, depending on its form, may constitute an amount required to be used to prepay Loans pursuant to Section 2.3(b) of the Credit Agreement;

 

WHEREAS, subject to the terms and conditions set forth below, the Administrative Agent and the Lenders have agreed (i) to temporarily suspend the application of Section 2.3(b)(vi) of the Credit Agreement to the Donlan Recovery, (ii) to the extent Borrower receives any portion of the Donlan Insurance Proceeds, to waive the application of Section 2.3(b)(ii) to such Donlan Insurance Proceeds, and (iii) to the extent Borrower receives the External Contribution, to waive the application of any applicable provisions of Section 2.3(b) to the External Contribution; and

 

WHEREAS, Borrower, Administrative Agent and the Lenders have further agreed to amend the Credit Agreement to make certain changes to the definitions of “Base Rate” and “Offshore Rate”.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows:

 

This excerpt taken from the WFII 8-K filed Feb 22, 2008.

RECITALS

 

A.            Parent, Merger Sub and the Company intend to effect a merger of Merger Sub into the Company in accordance with this Agreement, Delaware Law and California Law (the “Merger”).  Upon consummation of the Merger, Merger Sub will cease to exist, and the Company will become a wholly owned subsidiary of Parent.

 

B.            The respective Boards of Directors of Parent, Merger Sub and the Company have deemed it advisable and in the best interests of their respective corporations and shareholders that Merger Sub and the Company consummate the Merger provided for herein.

 

C.            For U.S. federal income tax purposes, the parties intend that the Merger will qualify as a tax free reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and intend for this Agreement to constitute a “plan of reorganization” within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.

 

D.            Concurrent with the execution of this Agreement and as a condition to and inducement of Parent’s willingness to enter into this Agreement, the executive officers and certain directors of the Company set forth on Schedule A are entering into voting undertakings in substantially the form attached as EXHIBIT B (the “Company Voting Undertakings”).

 

E.             Concurrent with the execution of this Agreement and as a condition to and inducement of the Company’s willingness to enter into this Agreement, the directors and executive officers of Parent set forth on Schedule B are entering into voting undertakings in substantially the form attached as EXHIBIT C (the “Parent Voting Undertakings,” and, with the Company Voting Undertakings, the “Voting Undertakings”).

 

F.             The respective boards of directors of Parent, Merger Sub and the Company have approved this Agreement and approved the Merger.

 

G.            Parent, Merger Sub and the Company desire to make certain  representations and warranties and other agreements in connection with the Merger.

 



 

This excerpt taken from the WFII 8-K filed Feb 23, 2006.

RECITALS

 

A.            Pursuant to the Equity Purchase Agreement dated as of February 17, 2006, by and among Buyer, Seller, and the Companies (as defined therein) (the “Purchase Agreement”), among other things, Seller has agreed to sell to Buyer, and Buyer has agreed to purchase the Shares (as defined in the Purchase Agreement) of the Companies.

 

B.            As a condition to its obligations under the Purchase Agreement, Buyer and Seller have agreed to enter into this Agreement in order to provide Buyer with certain services essential to the continued operation of the business of the Companies (the “Business”).

 

This excerpt taken from the WFII 8-K filed Feb 2, 2005.

RECITALS

 

A.                                   This Agreement and the purchase of Company as described herein have been approved by the respective boards of directors of WGSI and Company.

 

B.                                     Each of the Sellers owns that number and class of shares of common stock of Company set forth opposite such Seller’s name on Schedule 2.1 (the “Shares”), which Shares represent 100% of the issued and outstanding shares of capital stock of Company.

 

C.                                     Purchaser wishes to acquire the Shares from the Sellers and the Sellers wish to sell all of the Shares to Purchaser, upon the terms and subject to the conditions of this Agreement.

 

D.                                    The Parties wish to enter into certain agreements among themselves related to this Agreement (collectively, the “Ancillary Agreements”), in order to ensure that, after the Closing Date, Purchaser may operate Company in an uninterrupted fashion.

 

E.                                      The Parties desire to make certain representations and warranties and other agreements in connection with the acquisition of Company described in this Agreement.

 

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