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EXHIBIT 4.4
SECOND AMENDMENT
TO
FINANCIAL ADVISORY AGREEMENT
Second Amendment to Financial Advisory Agreement dated as of July 31,
1997 (the "Amendment"), among WATERMARC FOOD MANAGEMENT CO., a Texas
corporation formerly known as Xxxxx Blues Food Corporation (the "Company"), and
XXXXXXX XXXXXX XXXXX INC., a Texas corporation (the "Advisor");
WITNESSETH:
Whereas, the Company and the Advisor are parties to a Financial
Advisory Agreement dated as of January 1, 1995, as amended by the First
Amendment to Financial Advisory Agreement dated as of March 31, 1996 (as so
amended, the "Advisory Agreement") pursuant to which the Company has retained
the Advisor to provide certain advice and consulting services to the Company;
and
Whereas, the Company and the Advisor wish to extend the term of and
amend the Advisory Agreement in certain respects;
Now, therefore, in consideration of the foregoing premises, the
following mutual agreement, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Advisor agree to amend the Advisory Agreement as follows:
1. Definitions. Capitalized terms used herein shall have the
meaning assigned to them in the Advisory Agreement unless otherwise defined
herein or the context otherwise requires.
2. Amendments to the Advisory Agreement. The Advisory Agreement
is hereby amended as follows:
(a) Section 2.3 of the Advisory Agreement is hereby amended by
deleting reference to "$1.00" and substituting in place thereof "$0.25" and
deleting the reference to "a term of five years" in the second sentence and
substituting in place thereof "a term expiring on August 31, 2002."
3. Amendments to the Advisor's Warranty. Each of the Advisor's
Warrants is hereby amended by deleting the number "$1.00" in the first
paragraph and substituting in place thereof the number "$0.25" and by deleting
the date "December 31, 1999" in Section 1.a. and substituting in place thereof
the date "August 31, 2002."
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4. Representations and Warranties. The Company represents and
warrants as follows:
(a) The execution, delivery and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
and the transactions contemplated hereby and thereby (i) are within
the corporate authority of the Company, (ii) have been authorized by
all necessary corporate proceedings on the part of the Company, (iii)
do not conflict with or result in any material breach or contravention
of any provision of law, statute, rule, or regulation to which the
Company is subject or any judgment, order, writ, injunction, license,
or permit applicable to the Company, and (iv) do not conflict with any
provision of the corporate charter or bylaws of the Company or any
agreement or other instrument binding upon the Company.
(b) The execution, delivery, and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
will result in valid and legally binding obligations of the Company
enforceable against it in accordance with the respective terms and
provisions hereof and thereof.
(c) The execution, delivery, and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
and the consummation by the Company of the transactions contemplated
hereby and thereby do not require any approval or consent of, or
filing with, any governmental agency or authority.
5. Payment of Fees. The Company covenants and agrees that the
balance of the non-refundable financial advisory fees due under the Advisory
Agreement in the amount of $75,000 shall be paid in full on or before December
31, 1997.
6. Ratification. Except as expressly amended hereby, the Advisory
Agreement and the Advisor's Warrants are hereby ratified and confirmed in all
respects and shall continue in full force and effect. This Amendment and the
Advisory Agreement shall hereafter be read and construed together as a single
document, and all references to the Advisory Agreement or any agreement or
instrument related to the Advisory Agreement shall hereafter refer to the
Advisory Agreement as amended by this Amendment.
7. Termination. The Company and the Advisor agree that the term
of the Advisory Agreement shall end on December 31, 1997, in accordance with
the provisions of Section 6 of the Advisory Agreement.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
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9. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas (without reference
to conflict of laws).
In Witness Whereof, the Company and the Advisor have executed this
Amendment as of the date first above written.
WATERMARC FOOD MANAGEMENT CO.
By:
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Name:
Title:
XXXXXXX XXXXXX XXXXX
By:
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Name:
Title:
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Xxxxxx X. Xxxxxxxxxx
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