FIRST AMENDMENT TO PURCHASE ORDER FINANCING AGREEMENT
EXHIBIT 10.7
FIRST AMENDMENT TO PURCHASE
ORDER FINANCING AGREEMENT
This
FIRST AMENDMENT TO PURCHASE ORDER FINANCING AGREEMENT (this “Amendment”), dated as of
October 25, 2007, is by and between Harbrew Imports, Ltd., (“Debtor”) and Capstone Capital
Group I, LLC (“Secured
Party”).
WITNESSETH:
WHEREAS,
Debtor and Secured Party have entered a Purchase Order Financing Agreement (the
“Agreement”), dated as
of January 22, 2007 pursuant to which Secured Party has agreed to cause the
issuance of Letters of Credit and make cash advances to Debtor in accordance the
terms of the Agreement; and
WHEREAS,
the parties wish to amend the Agreement as set forth below.
NOW,
THEREFORE, for and in consideration of the foregoing recitals, and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties agree as follows:
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1.
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Section
7.5 is hereby amended by deleting the text thereof and inserting the
following in its place:
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“The
occurrence of a Change of Control of Debtor. For purposes of this Agreement, a
“Change of Control” shall mean on or after the date hereof, any change in the
composition of Debtor’s stockholders, as of the date hereof, which would result
in any stockholder or group acquiring 10% or more of any class of the capital
stock of the Debtor or that any person or entity (or group of persons or
entities acting in concert) shall otherwise acquire, directly or indirectly, the
power to elect a majority of the Board of Directors of the Debtor or otherwise
direct the management or affairs of Debtor by obtaining proxies, entering into
voting agreements or trusts, acquiring securities or otherwise.”
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2.
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Effect. Except
as specifically set forth herein, this Amendment does not limit, modify,
amend, waive, grant any consent with respect to, or otherwise affect
(a) any right, power or remedy of the Secured Party under the
Agreement, (b) any provision of the Agreement, all of which shall
remain in full force and effect and are hereby ratified and
confirmed. This Amendment does not entitle, or imply any
consent or agreement to, any further or future modification of, amendment
to, waiver of, or consent with respect to any provision of the
Agreement.
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3.
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Counterparts;
Facsimile Signatures. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed
to be an original with the same effect as if all the signatures were on
the same instrument. Delivery of an executed counterpart of the
signature page to this Amendment by telecopier shall be effective as
delivery of a manually executed counterpart of this
Amendment. Any party delivering an executed counterpart of the
signature page to this Amendment by telecopier shall thereafter promptly
deliver a manually executed counterpart of this Amendment, but the failure
to deliver such manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this
Amendment.
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4.
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Governing Law, Venue,
and Waiver of Jury Trial. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK AND IS SUBJECT TO THE PROVISIONS OF SECTION 11.7
AND 11.8 OF THE AGREEMENT, RELATING TO VENUE AND WAIVER OF JURY TRIAL, THE
PROVISIONS OF WHICH ARE BY THIS REFERENCE HEREBY INCORPORATED HEREIN IN
FULL.
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[Signatures
are on the next page.]
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IN
WITNESS WHEREOF, this Amendment has been executed as of the date first above
written.
| DEBTOR: | |||
| HARBREW IMPORTS, LTD. | |||
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By:
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/s/ Xxxxxxx XxXxxxx | |
| Name: Xxxxxxx XxXxxxx | |||
| Title: President | |||
| SECURED PARTY : | |||
| CAPSTONE CAPITAL GROUP I, LLC | |||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | ||
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: Managing Member |
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REAFFIRMATION
OF GUARANTOR
The
undersigned has executed a guaranty in favor of Capstone Capital Group I, LLC
(“CCG”), with
respect to the obligations of Harbrew Imports, Ltd., a New York corporation
(“Debtor”),
owing to CCG pursuant to that certain Purchase Order Financing Agreement dated
as of January 22, 2007 (the “Agreement”), as
amended by that certain First Amendment to Purchase Order Financing Agreement,
dated as of even date herewith (as the same may be amended, restated, modified
or supplemented from time to time hereafter, the “Amendment”), between
Debtor and CCG.
In
consideration of the foregoing, and other valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the undersigned hereby
acknowledges notice of the Amendment, consents to the terms contained therein,
and reaffirms and agrees that: (a) his obligations, guaranty, grants and/or
subordinations, as the case may be, under the guaranty shall remain in full
force and effect under the Agreement, as amended by the Amendment, as if made
contemporaneously therewith; (b) that each reference in a guaranty by the
undersigned to the Agreement shall mean and be a reference to the Agreement, as
amended by the Amendment; (c) nothing in such guaranty obligates CCG to notify
the undersigned of any changes in the financial accommodations made available to
Debtor, or to seek reaffirmations of such guaranties; and (d) no requirement to
so notify the undersigned or to seek reaffirmations in the future shall be
implied by the execution of this Reaffirmation of Guarantor. All
capitalized terms used, but not otherwise defined herein, shall have the
meanings given to them in the Agreement.
| GUARANTOR: | |||
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Dated: October
25, 2007
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/s/ Xxxxxxx XxXxxxx | ||
| Xxxxxxx XxXxxxx, individually | |||
| Address: 0000 Xxxxx Xxxxx | |||
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Xxxxxxxx, XX 00000
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