Exhibit 10.54
AMENDMENT TO SECOND AMENDED AND
RESTATED NON-NEGOTIABLE NOTE
THIS AMENDMENT TO SECOND AMENDED AND RESTATED NON-NEGOTIABLE NOTE (the
"Amendment") is made and entered into as of the 10th day of June, 1997, by and
between THE ANTIGUA GROUP, INC., a Nevada corporation ("Maker") and XXXXXX X.
XxXXXXXXX, an Arizona resident ("Payee").
WHEREAS, Maker and Payee have entered into a Second Amended and
Restated Non-Negotiable Note (the "Note") executed in connection with the Note
Amendment Agreement dated July 1, 1995 and a Stock Repurchase Agreement dated
January 1, 1993 (the "Stock Repurchase Agreement"), which instruments are
attached collectively hereto as Exhibit "1"; and
WHEREAS, Maker and Payee desire to modify and amend the Note in certain
respects and to terminate the Stock Repurchase Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Capitalized terms not defined herein shall have the meanings
contained in the Note. Except as otherwise provided herein, all references to
money herein refer to the lawful currency of the United States.
2. As of the date of this Amendment, the outstanding principal balance
of the Note is $250,964.25. Maker reaffirms all of its obligations under the
Note, and Maker acknowledges that it has no claims, offsets or defenses with
respect to the payment of sums due under the Note.
3. Concurrently with the Closing under and as defined in the Stock
Purchase Agreement between Southhampton Enterprises Corp. ("SEC"), Southhampton
Enterprises, Inc. and the shareholders of Maker (the "Stock Purchase
Agreement"), Maker will pay Payee $83,654.75 in cash or cashier's check.
Additionally, following the Closing, Maker will make the following payments to
Payee:
a. At the earlier of July 1, 1997 or the completion of a
registered offering of securities by SEC in which
gross proceeds of at least $12 million are raised
(the "Public Offering"), Maker will pay Payee
$83,654.75 in cash or cashier's check, plus accrued
interest as described in subparagraph "c" immediately
below;
b. At the earlier of September 1, 1997 or the Public
Offering, Maker will pay Payee $83,654.75 in cash
or cashier's check, plus accrued interest as
described in subparagraph "c" immediately below;
c. Interest will continue to accrue from the date of
this Amendment at the rate of 9% per annum on the
principal amounts set forth in subparagraphs "a" and
"b" immediately above. Such interest will be paid
monthly, on the first day of each month, on such
principal amounts until the Note, as amended by this
Amendment, is paid in full. All principal and
interest under the Note, as amended by this
Amendment, if not paid sooner as provided in this
Amendment, shall be due and payable no later than
September 1, 1997.
4. Concurrently with the Closing, Payee will receive 150,600 shares of
Common Stock of SEC and Warrants to purchase 75,300 additional shares of Common
Stock of SEC at an exercise price of $1.00 per share during the first year or
$1.55 per share (Canadian) during the second year (the number of shares and
Warrants and the exercise price and other terms of such Warrants shall be on
terms identical to those in effect for the other participants in SEC's Private
Placement). In lieu of such shares and Warrants, at any time between the Closing
date and the date which is 12 months thereafter, Payee shall have the right to
receive up to $150,600 in cash or cashier's check, upon Payee's tender and
deliver to SEC for cancellation of up to 150,600 shares and Warrants to purchase
75,300 shares of Common Stock of SEC; provided, however, that Payee shall have
the right to retain such shares and Warrants not tendered pursuant to this
Section. For example, if Payee tenders 75,300 shares and Warrants to purchase
37,650 shares of Common Stock of SEC, then Payee shall entitled to retain the
remaining 75,300 shares and Warrants to purchase 37,650 shares of Common Stock
of SEC.
The number of shares and Warrants to be canceled shall be determined on the
basis of the per share price of $1.00 and the number of Warrants received by
Payee on the date hereof. For example, if, on February 1, 1998, Payee wishes to
take cash of $50,000 in lieu of a portion of the 150,600 shares of Common Stock
and Warrants to purchase 75,300 shares of Common Stock of SEC that Payee shall
receive in the Private Placement, then Payee shall deliver to Maker his
certificates for 150,600 shares of Common Stock and Warrants to purchase 75,300
shares of Common Stock of SEC and Maker shall promptly thereafter deliver to
Payee (x) cash or a cashier's check for $50,000, (y) a new Common Stock
certificate for 100,600 shares of Common Stock (150,600 shares minus 50,000
shares), and (z) a new Warrant certificate entitling Payee to purchase 50,300
shares of Common Stock (75,300 shares minus 25,000 shares) on the same terms as
were formerly contained in the original Warrants.
5. The amounts set forth in Paragraph 3 above, and the amounts which
Payee may at his election receive pursuant to
Paragraph 4 above, represent the entire monetary consideration owed by Maker to
Payee under the Note and this Amendment.
6. In addition to the Events of Default described in the Note, it shall
also be an Event of Default under the Note and this Amendment if:
a. Maker shall fail for 10 calendar days after receiving
notice thereof, to pay, after it becomes due, any
payment required by Maker under this Amendment; or
b. Maker transfers or disposes of all or substantially
all of its assets, Maker merges, consolidates or
enters into any other similar combination with any
other entity and is not the surviving entity or Maker
liquidates, winds-up its business or dissolves
itself.
Upon the occurrence of any Event of Default, Payee shall have all rights and
remedies provided for by law or in equity and all other rights and remedies
described in the Note or this Amendment, including, without limitation, the
right to declare all sums of principal and interest due under the Note and this
Amendment immediately due and payable without additional notice of default,
presentment or demand for payment, protest or notice of nonpayment or dishonor,
or other notices or demands of any kind or character.
7. It shall also be an Event of Default under the Note and this
Amendment if Maker becomes the subject of any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships. If that happens, all sums of principal and
interest due under the Note and this Amendment shall automatically become due
and payable without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or other notices or demands of any
kind or character.
8. This Amendment shall automatically become effective upon the Closing
under the Stock Purchase Agreement. In the event such Closing does not occur,
this Amendment shall be of no further force and effect. Upon such Closing, the
Stock Repurchase Agreement shall be automatically terminated and shall upon such
termination be of no further force and effect.
9. Except as specifically hereby amended, the Note shall remain in full
force and effect. This Amendment shall not prejudice any rights or remedies of
Payee under the Note, as hereby amended.
10. The Note and this Amendment: (a) integrate all the terms and
conditions mentioned in or incidental to the Note and this Amendment; (b)
supersede all oral negotiations and prior and
other writings with respect to their subject matter; and (c) are intended by the
parties as the final expression of the agreement with respect to the terms and
conditions set forth in the Note and this Amendment and as the complete and
exclusive statement of the terms agreed to by the parties.
11. Maker has caused this Amendment to be executed by an officer who
was duly authorized and directed to do so by a resolution of the Board of
Directors of Maker which was duly authorized and adopted by (i) the requisite
number of members of the Board of Directors at a meeting that was duly called,
notice and held, or (ii) a unanimous consent in writing executed by each of the
members of the Board of Directors.
DATED on the 10th day of June, 1997.
THE ANTIGUA GROUP, INC.
/s/ Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx
By /s/ L. Xxxxxx Xxxxxx
L. Xxxxxx Xxxxxx
Its Chief Executive Officer
AGREED TO AND ACCEPTED
on the 10th day of June, 1997:
SOUTHHAMPTON ENTERPRISES CORP.
By /s/ L. Xxxxxx Xxxxxx
L. Xxxxxx Xxxxxx
Its Chief Executive Officer
