EXHIBIT 4.6
FIRST AMENDMENT TO 4% CONVERTIBLE AND
SUBORDINATED DEBENTURE DUE DECEMBER 14, 1999
THIS FIRST AMENDMENT TO 4% CONVERTIBLE AND SUBORDINATED DEBENTURE DUE
DECEMBER 14, 1999 (this "Amendment") is made and entered into as of this 25th
day of January, 1999,
BY AND BETWEEN NEW YORK BAGEL ENTERPRISES, INC.,
a Kansas Corporation,
hereinafter referred to as
"CORPORATION"
AND XX. XXXX XXXXXXX,
an individual,
hereinafter referred to as
"HOLDER"
WITNESSETH:
WHEREAS, Corporation and Holder entered into that certain 4%
Convertible and Subordinated Debenture Due December 14, 1999, dated December
14, 1995 (the "Debenture");
WHEREAS, Corporation has previously paid Holder two (2) principal
payments of Twenty-eight Thousand Seven Hundred Fifty Dollars ($28,750) with
interest thereon at the rate of four percent (4%) per annum;
WHEREAS, Pursuant to the terms of the Debenture, Corporation owes
Holder the two (2) principal payments due on December 14, 1998, and December
14, 1999, respectively, in the principal amount of Twenty-eight Thousand
Seven Hundred Fifty Dollars ($28,750) each plus related interest; and
WHEREAS, Corporation and Holder desire to amend the Debenture by
restructuring all remaining indebtedness.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. INCORPORATION OF RECITALS. The parties agree that the Debenture
is hereby modified, altered and amended to incorporate the whereas clause
recitals set forth above.
2. AMENDMENT TO SECTION 1. Section 1 of the Debenture is hereby
amended by deleting the same in its entirety and inserting in lieu thereof
the following:
SECTION 1. TERMS. The parties acknowledge and agree that New York
Bagel Enterprises, Inc., a Kansas corporation ("Corporation") has paid
Xx. Xxxx Xxxxxxx, successor to the Estate of Xxxxxxx X. Xxxxxxx, a
Tennessee probate estate ("Payee"; Payee and any permitted subsequent
holder(s) hereof are hereinafter referred to collectively as "Holder")
two installments of Twenty-eight Thousand Seven Hundred Fifty Dollars
($28,750) on December 14, 1996, and December 14, 1997, with related
interest at four percent (4%) per annum. Subject to Section 6 herein,
Corporation shall pay Holder the remaining principal balance of
Fifty-seven Thousand Five Hundred and No/100 Dollars ($57,500.00) as
follows: (i) a monthly payment of One Thousand Dollars ($1,000) for
forty-eight (48) months beginning on February 1, 1999 and payable on
the first day of each month through and including January 1, 2003 (the
"Maturity Date"); and (ii) Twenty-one Thousand Two Hundred Fifty-five
and 32/100 Dollars ($21,255.32) on January 1, 2003, which amount
includes remaining principal and interest at six percent (6%) per
annum and interest at four percent (4%) for one year. If any of the
principal or interest is not so paid, and at the option of Holder, or
its assigns, all principal and interest shall become immediately due
and payable.
3. AMENDMENT TO SECTION 16. Section 16 of the Debenture is hereby
amended by deleting the same in its entirety and inserting in lieu thereof
the following:
SECTION 16. NOTICES. All notices and other communications
required or permitted under this Debenture shall be validly given,
made, or served if in writing and delivered personally or sent by
registered mail at the following address:
If to Corporation: Xxxxxx X. Xxxxxx, Chief Executive Officer
New York Bagel Enterprises, Inc.
000 X. 0xx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Xxxxxxx X. Xxxxxx, Esq.
Klenda, Mitchell, Austerman & Xxxxxxxx, L.L.C.
1600 Epic Center
000 Xxxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000-0000
If to Holder: Xx. Xxxx Xxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy to: Xxxx X. Saturn
Saturn and Xxxxx
000 Xxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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4. OTHER TERMS. All other terms and conditions in the Debenture
shall remain unchanged and nothing herein shall affect the rights and
obligations of the parties hereto under the Debenture except as modified
herein.
5. AMENDMENT AND MODIFICATIONS. This Amendment may only be amended
or modified in writing signed by the parties.
6. ENTIRE AGREEMENT. This Amendment contains the entire agreement
between the parties and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
7. COUNTERPARTS AND FACSIMILE SIGNATURES. This Amendment may be
executed simultaneously in two (2) or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument. Facsimile signatures of the parties hereto shall be binding.
8. HEADINGS. The headings contained in this Amendment are for
convenience and reference purposes only and shall not affect the meaning or
interpretation of this Amendment.
9. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Oklahoma.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns, heirs and personal representatives.
11. TERMS AND WORDS. All terms and words used in this Amendment,
regardless of numbers and genders in which they are used, shall be deemed to
include singular or plural and all genders as the context or sense of this
Amendment or any paragraph or clause herein may require.
IN WITNESS WHEREOF, the parties have executed this Amendment the day
and year first above written.
NEW YORK BAGEL ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx, Chief Executive Officer
"CORPORATION"
/s/ Xxxx Xxxxxxx
-----------------------------------------
XX. XXXX XXXXXXX
as successor in interest to
The Estate of Xxxxxxx X. Xxxxxxx
"HOLDER"
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