Exhibit 10.46
SECOND AMENDMENT
TO
SERIES 1 BRIDGE NOTE PURCHASE AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO SERIES 1 BRIDGE NOTE PURCHASE AND SECURITY
AGREEMENT (the "Second Amendment") is made and entered into as of this 28th day
of July, 1999, between COMPOSITECH LTD., a Delaware corporation (the "Company")
and the Purchasers of the Third Closing Bridge Notes, as hereinafter defined
(each of whom is individually referred to as a "Purchaser" and all of whom
collectively are referred to as the "Purchasers"), in connection with an
Additional Closing as contemplated in the Purchase Agreement (defined below).
Capitalized terms used and not otherwise defined in this Second Amendment shall
have the meanings ascribed to them in the Purchase Agreement.
Background
The Company has previously authorized the issuance, sale, and delivery of
up to $1,500,000 in original principal amount of the Company's Series 1 Secured
Convertible Bridge Financing Notes (the "Bridge Notes") in the Series 1 Bridge
Note Purchase And Security Agreement (the "Purchase Agreement") dated March 16,
1999, by and among the Company and the Purchasers. The First Closing under the
Purchase Agreement for the sale and issuance of $500,000 in original principal
amount of Bridge Notes took place pursuant to the terms of the Purchase
Agreement on that date, the Second Closing for the sale and issuance of $430,000
in original principal amount of Bridge Notes took place, pursuant to the terms
of the Purchase Agreement and the First Amendment to Series 1 Bridge Note
Purchase and Security Agreement dated April 21, 1999 (the "First Amendment")
executed in connection with the Second Closing, on April 21, 1999, and the
parties now wish to conduct an Additional Closing under the Purchase Agreement
(the "Third Closing"), to provide for the issuance, sale, and delivery of up to
$570,000 in original principal amount of Bridge Notes (the "Third Closing Bridge
Notes") contemporaneously herewith, and to amend the Purchase Agreement to,
inter alia, provide for additional Collateral as security for the Third Closing
Bridge Notes.
Agreement
For and in consideration of the premises and the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchasers under this Second
Amendment hereby agree as follows:
Article 1. Third Closing Grant of Security Interest and Provision of
Collateral.
Section 1.1. Additional Equipment as Security. In order to secure the
obligations of the Company due to the Purchasers of the Third Closing Bridge
Notes, in addition to the general credit of the Company, the Company hereby
grants to Purchasers of the Third Closing Bridge Notes, effective on the
Additional Closing Date established therefor, a continuing first priority
security interest in and a general lien upon the equipment listed and related
proceeds described on Exhibit A hereto and incorporated herein by reference (the
"Third Closing Collateral"). The Company and all Purchasers of Third Closing
Bridge Notes acknowledge and agree that the Equipment (and any proceeds related
thereto) pledged as collateral pursuant to the First Closing and Second Closing,
respectively, does not provide security for the Third Closing Bridge Notes, and
that such Third Closing Bridge Notes are secured solely by the Third Closing
Collateral.
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Exhibit 10.46
Section 1.2. Remedies Upon Default under the Third Closing Bridge Notes.
Upon the occurrence or existence of an "Event of Default" as defined in Section
10 of the Third Closing Bridge Notes, and subject to the terms of Article 2 of
the Purchase Agreement, as specifically amended by the First Amendment to Series
1 Bridge Note Purchase and Security Agreement dated April 21, 1999, and as
further amended by this Second Amendment, each Purchaser of the Third Closing
Bridge Notes shall have the right to pursue all available remedies at law or in
equity, including without limitation:
(a) all of the rights and remedies available to a secured party under
the Uniform Commercial Code as adopted in the State of New York and any
other applicable law, all of which shall be cumulative and none of which
shall be exclusive to the fullest extent permitted by law, and all other
legal and equitable rights under this Second Amendment and the Transaction
Agreements which may be available to such Purchasers, all of which shall be
cumulative;
(b) the right to take possession of the Third Closing Collateral upon
receipt by the Company of 24 hours' written notice of Purchasers' intention
to do so, and to enter the offices of the Company during normal business
hours to take possession of the Third Closing Collateral; the right of the
Purchaser to (a) enter upon the premises of the Company or any of its
subsidiaries, or any other place or places where the Third Closing
Collateral is located and kept, through self-help and without judicial
process, without first obtaining a final judgment or giving Company or any
of its subsidiaries notice and opportunity for a hearing on the validity of
the Purchaser's claim and without any obligation to pay rent to Company or
any of its subsidiaries, and remove the Third Closing Collateral therefrom
to the premises of Purchaser or any agent of Purchaser, for such time as
Purchaser may desire, in order to effectively collect or liquidate the
Third Closing Collateral; and/or (b) require Company to assemble the Third
Closing Collateral and make it available to Purchaser at a place to be
designated by the Purchaser, in its sole discretion.
(c) the right to sell or otherwise dispose of all or any part of the
Third Closing Collateral in its then condition, at public or private sale
or sales, with such notice as may be required by law, in lots or in bulk,
for cash or on credit, all as such Purchaser may deem advisable, and
purchase all or any part of the Third Closing Collateral at public or, if
permitted by law, private sale and, in lieu of actual payment of such
purchase price, may set off the amount of such price against the Company
obligations under the Third Closing Bridge Notes, and to apply the proceeds
realized from such sale, after allowing two (2) business days for
collection, first to the reasonable costs, expenses, and attorneys' fees
and expenses incurred by such Purchaser for collection and for acquisition,
storage, sale, and delivery of the Third Closing Collateral, secondly to
interest due upon the Company obligations under the Third Closing Bridge
Notes, and thirdly to the principal of the Company obligations under the
Third Closing Bridge Notes; and
(d) the right to proceed by an action or actions at law or in equity
to obtain possession of the Third Closing Collateral, to recover the
Company obligations under the Third Closing Bridge Notes and amounts
secured hereunder or thereunder or to foreclose under this Agreement or the
other Transaction Agreements and sell the Third Closing Collateral or any
portion thereof, pursuant to a judgment or decree of a court or courts of
competent jurisdiction, all without the necessity of posting any bond.
Section 1.3. Agreement to Appointment of Purchaser Representative. Each
Purchaser hereto hereby acknowledges and agrees to the irrevocable appointment
of Representative, as defined in the Purchase Agreement as amended by the First
Amendment, to act as the sole and exclusive agent and
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Exhibit 10.46
representative of such Purchaser to act on behalf of such Purchaser and in such
Purchaser's name, place, and stead, to exercise all rights of such Purchaser,
and take all action on behalf of Purchaser that may be taken by Purchaser with
respect to the collateral granted under this Second Amendment, the First
Amendment, the Purchase Agreement, the Bridge Notes, and the other Transaction
Agreements, all as more fully set forth in the Purchase Agreement and the First
Amendment.
Section 1.4. Legal Opinion of Company Counsel. The opinion of legal counsel
to the Company in substantially the form of Exhibit B attached hereto is issued
in connection with the Third Closing.
Section 1.5. Provision for Updated Disclosure Schedule. In connection with
the Third Closing and this Second Amendment executed pursuant thereto, the
Company may in its discretion update its disclosure to Purchasers of certain
information required under Article 3 of the Purchase Agreement, by attaching to
this Second Amendment an updated Disclosure Schedule, as indicated on Schedule 1
attached hereto and incorporated herein by reference.
Section 1.6. No Further Amendment. Except as specifically provided in this
Second Amendment, the Purchase Agreement, as amended by the First Amendment, and
all its original terms, covenants, conditions, and agreements, including without
limitation the Company's representations and warranties therein, shall remain in
full force and effect as originally executed by the parties thereto, including
the Purchasers executing Purchaser signature pages to this Second Amendment,
such execution being deemed to be execution of the Purchase Agreement.
Article 2. Miscellaneous.
Section 2.1. Entire Agreement; Amendments. This Agreement supersedes all
other prior oral or written agreements between the Purchasers under this Third
Closing, the Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Second Amendment and the
instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor any Purchaser
makes any representation, warranty, covenant, or undertaking with respect to
such matters other than those contained in the Purchase Agreement, which remain
in full force and effect as if made on the date hereof. No provision of this
Second Amendment may be waived or amended other than by an instrument in writing
signed by the party to be charged with enforcement.
Section 2.2. Governing Law. This Second Amendment shall be governed by and
interpreted in accordance with the laws of the State of New York without regard
to the principles of conflict of laws. The parties agree that any appropriate
State court located in New Castle County, Delaware or the Federal courts located
in the District of Delaware, shall have jurisdiction of any case or controversy
arising under or in connection with this Second Amendment and shall be the
proper forum in which to adjudicate such case or controversy, and the parties
further agree to submit to the personal jurisdiction of such court.
Section 2.3. Notices. Any notices, consents, waivers, or other
communications required or permitted to be given under the terms of this Second
Amendment must be in writing and given as more fully provided for in Section 9.5
of the Purchase Agreement.
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Exhibit 10.46
COMPANY SIGNATURE PAGE
TO
SECOND AMENDMENT
TO
SERIES 1 BRIDGE NOTE PURCHASE AND SECURITY AGREEMENT
COMPANY
COMPOSITECH LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
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Exhibit 10.46
PURCHASER SIGNATURE PAGE
TO
SECOND AMENDMENT TO SERIES 1 BRIDGE NOTE
PURCHASE AND SECURITY AGREEMENT
AND
SERIES 1 BRIDGE NOTE PURCHASE AND SECURITY AGREEMENT
PURCHASER
▇▇▇▇▇▇ GmbH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
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▇▇▇▇▇▇ GmbH
Purchaser Name Address and ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ Number 6302 Zug
Switzerland
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Principal Amount of Third USD$250,000.00
Closing Bridge Notes Purchased
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Purchaser's Legal Counsel
Address and
Facsimile Number
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Exhibit 10.46
PURCHASER SIGNATURE PAGE
TO
SECOND AMENDMENT TO SERIES 1 BRIDGE NOTE
PURCHASE AND SECURITY AGREEMENT
AND
SERIES 1 BRIDGE NOTE PURCHASE AND SECURITY AGREEMENT
PURCHASER
SOVCAP EQUITY PARTNERS LTD.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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SOVCAP EQUITY PARTNERS LTD.
Purchaser Name Address and Cumberland House
Facsimile Number #▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇
Nassau, New Providence, The Bahamas
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Principal Amount of Second USD$200,000.00
Closing Bridge Notes Purchased
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▇▇▇▇▇▇▇ Law Group LLC
Purchaser's Legal Counsel ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
Address and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Facsimile Number Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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