WAIVER OF RIGHTS
AND
FIRST AMENDMENT TO DEBENTURE AGREEMENT
This Waiver of Rights and First Amendment to Debenture Agreement is entered
into effective as of the 30th day of April 1999, between U.S. Wireless Data,
Inc., a Colorado corporation (the "Company") and the undersigned holders (the
"Holders") of the Company's 6% Convertible Debentures Due July 21, 2000 (the
"Debentures") to waive certain rights held by the Debenture holders and to
modify and amend the Debenture Agreement relating to the Debentures. RECITALS
WHEREAS, the Company has issued Debentures in the aggregate face
amount of $2,000,000;
WHEREAS, the Holders hold Debentures in the face amount set forth
below its name on the execution page of this Agreement;
WHEREAS, the Company owes the undersigned accrued but unpaid interest
and damages on the Debentures through April 26, 1999 (the "Calculation
Date") and has also agreed to prepay the balance of interest that will
become payable through June 30, 1999, in the aggregate amount set forth
below each Holder's name on the execution page of this Agreement;
WHEREAS, each of the Holders is willing to waive all defaults related
to the Debentures up to the date of this Agreement, if the Company pays
such accrued but unpaid interest and penalties in the form of the Company's
Series B Cumulative Convertible Redeemable Preferred Stock;
WHEREAS, Section III of the Debenture Agreement gives the Holders the
right to declare the principal and all accrued interest on such Debenture
to be immediately due and payable upon the satisfaction of certain
conditions;
WHEREAS, Section IV.D. of the Debenture Agreement gives the Holders
the right to require the Company to redeem the Debentures upon the
satisfaction of certain conditions and to receive additional consideration
in the event the shares of stock underlying the Debenture are not timely
registered;
WHEREAS, the Holders are willing to restrict such rights under Section
III and Section IV.D. of the Debenture Agreement in consideration of the
Company attempting to raise additional capital by selling the Company's 6%
Series B Cumulative Convertible Redeemable Preferred Stock.
NOW, THEREFORE, in consideration of the Company's attempts to raise
additional capital, the opportunity being given to the Holders to
participate in such offering, and other valuable consideration, the parties
agrees as follows:
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1. The Holders agree to exchange all accrued and unpaid interest and
damages due on the Debentures and all interest that will become payable on such
Debentures on or before June 30, 1999 (such aggregate amount set forth below the
undersigned's name on the execution page of this Agreement) for the Company's
Series B Cumulative Convertible Redeemable Preferred Stock, and to waive any and
all previously occurring or currently existing defaults under the Debentures,
the Debenture Agreement, or any related registration rights agreement. To
accomplish the purchase of the Company's Series B Cumulative Convertible
Redeemable Preferred Stock, the undersigned agrees to execute a Securities
Purchase Agreement in substantially the same form as the agreement attached
hereto as Exhibit A.
2. Notwithstanding anything to the contrary in any other agreement, the
Debenture Agreement is hereby amended so that the Holders waive their right to
declare the principal and all accrued interest on the Debentures immediately due
and payable pursuant to Section III of the Debenture Agreement solely due to
default in the payment of interest and the failure to register the underlying
shares of Common Stock, prior to the date hereof.
3. The Holders agree not to declare the principal and accrued interest on
the Debentures due and payable pursuant to Section III of the Debenture
Agreement due to any of the reasons set forth in Section 2 above unless and
until:
a. the holders of the Company's Series B Cumulative Convertible
Redeemable Preferred Stock have a then exercisable right of redemption
regarding such stock under Section 2(b)(iv) of the Registration Rights
Agreement annexed to the Securities Purchase Agreement attached hereto as
Exhibit A (the "New Registration Rights Agreement"); or
b. 180 days have elapsed following the "Closing Date" (as that term is
defined in the New Registration Rights Agreement).
4. Notwithstanding anything to the contrary in any other agreement, Section
IV.D of the Debenture Agreement is hereby amended such that:
a. the Holders will not have any right to force the Company to redeem
any Debenture unless and until the holders of the Company's Series B
Cumulative Convertible Redeemable Preferred Stock have a then exercisable
right of redemption regarding such stock under Section 2(b)(iv) of the New
Registration Rights Agreement; and
b. the Holders will have no future right to accrue any penalty for the
Company's failure to file a registration statement regarding the securities
underlying the Debentures (the "Registration Statement"), or the Company's
failure to cause the Registration Statement to become effective, other than
as set forth below:
i. If the Registration Statement is not filed in proper form with
the Securities and Exchange Commission on or before the Required
Filing Date (as that term is
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defined in the New Registration Rights Agreement), then the Company
shall pay the undersigned a late filing penalty on the first day after
such Required Filing Date in an amount equal to three percent (3%) of
the face amount of the Debentures then held by the Holders.
ii. If the Registration Statement is not filed in proper form
with the Securities and Exchange Commission on or before each monthly
anniversary of the Required Filing Date (as that term is defined in
the New Registration Rights Agreement), then the Company shall pay the
Holders a late filing penalty on each such date in an amount equal to
three percent (3%) of the face amount of the Debentures then held by
the Holders.
iii. If the Registration Statement is not effective on or before
the Required Effective Date (as that term is defined in the New
Registration Rights Agreement), then the Company shall pay the Holders
a late filing penalty on the first day after such Required Effective
Date in an amount equal to three percent (3%) of the face amount of
the Debentures then held by the Holders.
iv. If the Registration Statement is not effective on or before
each monthly anniversary of the Required Effective Date (as that term
is defined in the New Registration Rights Agreement), then the Company
shall pay the Holders a late filing penalty on each such date in an
amount equal to two percent (2%) of the face amount of the Debentures
then held by the Holders.
5. Except for the remedies granted to the Holders pursuant to Section III
and Section IV of the Debenture Agreement, the Holders do not waive any and all
other remedies available to them under the Debenture Agreement and any related
New Registration Rights Agreement.
6. In all other respects the Debenture and the Debenture Agreement shall
remain unchanged.
7. This Waiver and Amendment Agreement shall not be binding on any party
until similar agreements are fully executed by all Holders and the Company.
Notwithstanding the foregoing, this Waiver and Amendment Agreement may be
executed in counterparts and by facsimile signature.
8. This Waiver and Amendment Agreement shall be construed under the laws of
the State of Colorado for contracts executed and to be performed fully in such
State.
IN WITNESS WHEREOF, each of the undersigned have executed this Waiver and
Amendment Agreement effective as of the date first above written.
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U.S. Wireless Data, Inc.
By:
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Print Name:
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Title:
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Date:
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Debenture Holder Debenture Holder
By: By:
------------------------------------- --------------------------------
Print Name: Print Name:
----------------------------- ------------------------
Title: Title:
---------------------------------- ----------------------------
Date: Date:
----------------------------------- -----------------------------
Face Amount of Face Amount of:
Debentures Held: $ Debentures Held: $
-------------------- ------------
Aggregate Interest and Aggregate Interest and
Penalties Owed as of Penalties Owed as of
the calculation date: $ the calculation date: $
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Debenture Holder
By:
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Print Name:
-------------------------------
Title:
------------------------------------
Date:
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Face Amount of
Debentures Held: $
-----------------------
Aggregate Interest and
Penalties Owed as of
the Calculation Date: $
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EXHIBIT A
FORM OF SECURITIES PURCHASE AGREEMENT
WITH REGISTRATION RIGHTS AGREEMENT ANNEXED
[Filed herewith as Exhibit 4.1 and 4.2, respectively.]