AMENDMENT NO. 1
TO
NOTE PURCHASE AGREEMENT
AND BRIDGE FINANCING WARRANTS
AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT ("Amendment") dated as of
January 15, 1997, by and between ▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC., a Delaware
corporation, having its executive office at ▇▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company") and the purchasers named on the signature page
hereto (hereinafter referred to individually as a "Purchaser" and collectively
as the "Purchasers").
RECITALS
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WHEREAS, the Company and the Purchasers entered into a Note Purchase
Agreement, dated as of January 9, 1997 (the "Note Purchase Agreement"), pursuant
to which, among other things, the Company issued to the Purchasers an aggregate
of $6,000,000 principal amount of its 10% Senior Subordinated Notes (the
"Notes");
WHEREAS, pursuant to the Note Purchase Agreement, the Company has
issued to the Purchasers warrants (the "Original Warrants") to purchase an
aggregate of 75,000 shares of the Company's common stock, par value $.001 per
share (the "Common Stock"), and may, under certain circumstances described in
the Notes, issue warrants (the "Additional Warrants") to purchase an aggregate
of up to 375,000 additional shares of Common Stock (collectively with the
Original Warrants, the "Bridge Financing Warrants");
WHEREAS, the Notes and the Original Warrants are being held in escrow
pursuant to an escrow agreement, dated January 9, 1997, among the Company, the
Purchasers and the escrow agent named therein (the "Escrow Agent"); and
WHEREAS, the Company and the Purchasers desire to amend the Note
Purchase Agreement and the Original Warrants as set forth herein;
NOW, THEREFORE, the Company and each of the Purchasers agree as
follows:
Section 1. Clause (iv) of Section 8(a) of the Note Purchase Agreement
is hereby amended to read in its entirety as follows:
"(iv) any other Debt of the Company which the Company and the Purchaser
may hereafter from time to time expressly and specifically agree in writing
shall constitute Senior Indebtedness, provided that the debt incurred pursuant
to the Securities Purchase Agreement by and between the Company and The
Equitable Life Assurance Society of the United States and any other party, to be
executed at the closing of the transactions contemplated by the Asset Purchase
Agreement, shall not constitute Senior Indebtedness and, in turn, shall be
subordinated, junior and subject in right of payment to the prior payment of the
Notes in the manner set forth in the Securities Purchase Agreement."
Section 2. The last two sentences of Section 5(g) of (a) the form of
Bridge Financing Warrants attached as Exhibit B to the Note Purchase Agreement
and (b) each of the Original Warrants issued by the Company, are hereby amended
to read in their entirety as follows:
"If the managing underwriter for the offering advises the
Company in writing that the total amount of securities sought
to be registered by the Holders and other shareholders of the
Company having similar registration rights (collectively, the
"▇▇▇▇▇▇▇▇▇ Shareholders") exceeds the amount of securities
that can be offered without adversely affecting the offering
by the Company or, if applicable the ▇▇▇▇▇▇▇▇▇ Shareholder
demanding registration rights (the "Demand Shareholder"), then
the Company may reduce the number of shares to be registered
by the Company for the ▇▇▇▇▇▇▇▇▇ Shareholders (other than the
Demand Shareholder), including Warrant Shares, to a number
satisfactory to such managing underwriter. Any such reduction
shall be among ▇▇▇▇▇▇▇▇▇ Shareholders exercising piggy-back
registration rights pro rata, based upon the total number of
shares held by each such ▇▇▇▇▇▇▇▇▇ Shareholder which are
subject to registration rights."
Section 3. The Company shall cause Original Warrants to be delivered to
the Purchasers, amended as set forth herein.
Section 4. Other than as set forth in this Amendment, the Note Purchase
Agreement, the Notes and the Bridge Financing Warrants shall remain in full
force and effect.
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Section 5. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall together
constitute one and the same instrument.
SECTION 6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW).
Section 7. This Amendment shall be binding upon all Purchasers who
execute this Amendment, even in the event that less than all the Purchasers
named on Schedule I to the Note Purchase Agreement execute this Agreement.
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IN WITNESS WHEREOF, the Company and the Purchasers have caused this
Amendment to be executed by their duly authorized officers as of the date first
written above.
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By:
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and CFO
BEDFORD FALLS INVESTORS, L.P.
By: Metropolitan Capital Advisors, L.P.
General Partner
By: Metropolitan Capital Advisors, Inc.
General Partner
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
METROPOLITAN CAPITAL ADVISORS, L.P.
By: Metropolitan Capital Advisors,
Inc.
General Partner
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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METROPOLITAN CAPITAL ADVISORS
INTERNATIONAL LIMITED
By: Metropolitan Capital Partners III, L.P.
Investment Manager
By: Metropolitan Capital III, Inc.
General Partner
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
DIVERSIFIED STRATEGIES FUND, L.P.
By: ▇▇▇▇▇▇ Financial, Inc.
General Partner
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ CAPITAL MANAGEMENT, L.P.
By: S & E Partners, L.P.
General Partner
By: ▇▇▇▇▇▇▇, Inc.
General Partner
By:
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▇▇▇▇▇ ▇▇▇▇▇▇
President
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
