SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
SECOND AMENDMENT dated as of October 23, 1998 (the "Second Amendment") to
the NOTE PURCHASE AGREEMENT (the "Agreement") dated as of September 19, 1997, as
amended by the First Amendment to the Note Purchase Agreement dated April 14,
1998 among BCAM INTERNATIONAL, INC., a New York corporation (the "Company"),
IMPLEO LLC, a Connecticut limited liability company (the "Purchaser") and
WEXFORD MANAGEMENT LLC, as agent for the Purchaser and the holders of Other
Notes (the "Agent").
W I T N E S S E T H:
WHEREAS, the Purchaser and the Company have heretofore entered into that
certain Note Purchase Agreement dated as of September 19, 1997, as amended by
the First Amendment to the Note Purchase Agreement dated April 14, 1998 (the
"Agreement"). The Company has heretofore issued, and the Purchaser has
heretofore purchased, the Company's 10%/13% convertible subordinated promissory
notes (the "Notes") in the aggregate principal amount of $5,000,000 pursuant to
the Agreement;
WHEREAS, as of even date herewith, the Purchaser and the Company have
entered into a Stock Purchase and Restructure Agreement (the "Purchase
Agreement"), pursuant to which, the Purchaser has agreed to waive certain rights
it has with respect to the election of the Company's board of directors.
NOW, THEREFORE, the Purchaser and the Company hereby agree as follows:
1. Amendment. Section 4.1 of the Agreement shall be and is hereby amended
by the deletion of the following language from the language contained therein:
"In addition, so long as the Notes are outstanding, the Purchaser
shall have the right to designate a number of directors of the
Company equal to at least 25% (and if the number of Directors is not
divisible by four, rounded up to the next whole number) of the
number of such directors. In the case that any nominee designated by
the Purchaser ceases to serve as a director of the Company, Drew or
BT for any reason, the Company agrees that it will nominate to its
board of directors or the board of directors of Drew or BT, as the
case may be, one or more replacement nominees designated by the
Purchaser and use its best efforts to cause such replacement
nominees to be elected."
2 Interpretation; Construction. This Second Amendment shall be construed
in connection with and as part of the Agreement, and except as modified and
expressly amended by this Second Amendment, all terms, conditions and covenants
contained in the Agreement, the First Amendment and the Notes are hereby
ratified and shall be and remain in full force and effect. From and after the
effective date of this Second Amendment, references to the Agreement shall mean
the Agreement as amended by the First Amendment and this Second Amendment.
3. Effectiveness of the Agreement. The effectiveness of this Agreement is
conditioned upon the parties consummating the transactions contemplated by the
Purchase Agreement, and the exhibits thereto. In the such transactions are not
consummated by the parties hereof, this agreement shall be of no force or
effect.
4. Effect of Headings. The Section headings used in this Agreement are
included for purposes of convenience only, and shall not affect the construction
or interpretation of any of the provisions hereof.
5. Entire Agreement. This Agreement along with the other agreements and
instruments referred to herein, constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede all prior
agreements or understandings as to such subject matter. No party hereto has made
any representation or warranty or given any covenant to the other except as set
forth in this Agreement.
6. Amendments and Modifications. No amendment or modification of this
Agreement shall be valid unless made in writing and signed by or on behalf of
the party to be charged therewith.
7. Governing Law; Jurisdiction. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the laws
of the State of New York applicable to contracts made and to be performed wholly
within such State.
8. Choice of Forum; Waiver of Trial by Jury. Any suit, action or
proceeding brought by either party against the other party for claims arising
out of this Agreement shall be brought and enforced exclusively in the United
States District Court for the Southern District of New York, or in the event
that court lacks jurisdiction to hear the claim, in the New York State Supreme
Court in New York County. In any such suit, action or proceeding, each party
waives, to the fullest extent it may effectively do so, its right to a trial by
jury.
IN WITNESS WHEREOF, the parties have executed this Second Amendment to the
Note Purchase Agreement as of the date first written above.
2
BCAM INTERNATIONAL INC.
By:
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Xxxxxxx Xxxxxxx
President
IMPLEO LLC
By:
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WEXFORD MANAGEMENT LLC
as Agent for Impleo LLC
By:
--------------------
Xxxxxx Xxxxxx
President
WEXFORD MANAGEMENT LLC
as Agent
By:
--------------------------
Xxxxxx Xxxxxx
President
