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FIRST AMENDMENT
TO
FINANCIAL ADVISORY AGREEMENT
First Amendment to Financial Advisory Agreement dated as of March 31,
1996 (the "Amendment"), among WATERMARC FOOD MANAGEMENT CO., a Texas
corporation formerly known as Xxxxx Blues Food Corporation (the "Company"), and
XXXXXXX XXXXXX XXXXX INC., a Texas corporation (the "Advisor");
WITNESSETH:
Whereas, the Company and the Advisor are parties to a Financial
Advisor Agreement dated as of January 1, 1995 (the "Advisory Agreement"),
pursuant to which the Company has retained the Advisor to provide certain
advice and consulting services to the Company; and
Whereas, the Company and the Advisor wish to extend the term of and
amend the Advisory Agreement in certain respects;
Now, therefore, in consideration of the foregoing premises, the
following mutual agreement, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Advisor agree to amend the Advisory Agreement as follows:
1. Definitions. Capitalized terms used herein shall have the
meaning assigned to them in the Advisory Agreement unless otherwise defined
herein or the context otherwise requires.
2. Amendments to the Advisory Agreement. The Advisory Agreement
is hereby amended as follows:
(a) Section 2.1 of the Advisory Agreement is hereby amended by
adding the following sentence:
Commencing July 1, 1996, the monthly financial advisory fee
shall be reduced to $5,000 per 30-day period.
(b) Section 2.3 of the Advisory Agreement is hereby amended by
deleting reference to "$2.50" and substituting in place thereof "$1.00"
(c) Section 6 of the Advisory Agreement is hereby amended by
deleting all references to "eighteen months" in the first and second sentence
and substituting in place thereof "36 months."
(d) The Advisory Agreement is hereby amended by inserting the
following new Section 13 immediately after Section 12:
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13. ADDITIONAL AGREEMENTS BY THE COMPANY.
(a) Nomination of Director. So long as any of the 12%
Subordinated Notes due July 31, 1997 remain outstanding, the Advisor
shall have the right to nominate one individual to serve on the Board
of Directors of the Company. It is agreed that Xxxxxxx X. Xxxxxxxx
shall be deemed the nominee of the Advisor until the first to occur of
(i) his resignation as a director of the Company or (ii) the
termination of his employment with the Advisor. Xxxxxx X. Xxxxxxxxxx
agrees to vote, whether at an annual meeting of shareholders, by
unanimous consent in lieu thereof, or otherwise, all shares of the
capital stock of the Company that he may now or hereafter beneficially
own, directly or indirectly, in favor of the election as a director of
the Company the person designated by the Advisor. If the Advisor so
requests, Xx. Xxxxxxxxxx shall vote all shares of capital stock of the
Company that he may at the time beneficially own, directly or
indirectly, in favor of (i) the removal of a director previously
designated by the Advisor and (ii) the election of a replacement
designated by the Advisor. If Xx. Xxxxxxxxxx votes in favor of the
removal of a director designated by the Advisor other than as
requested by the Advisor, he shall simultaneously vote all shares of
capital stock of the Company that he may at the time beneficially own,
directly or indirectly, in favor of the election of a replacement
designated by the Advisor.
(b) Financial Information. The Company agrees to provide
to the Advisor promptly upon their issuance copies of the Company's
monthly, quarterly, and annual financial statements and an annual
budget with periodic updates.
3. Amendments to the Advisor's Warrants. Each of the Advisor's
Warrants is hereby amended by deleting the number "$2.50" in the first paragraph
and substituting in place thereof the number "$1.00."
4. Representations and Warranties. The Company represents and
warrants as follows:
(a) The execution, delivery and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
and the transactions contemplated hereby and thereby (i) are within
the corporate authority of the Company, (ii) have been authorized by
all necessary corporate proceedings on the part of the Company, (iii)
do not conflict with or result in any material breach or contravention
of any provision of law, statute, rule, or regulation to which the
Company is subject or any judgment, order, writ, injunction, license,
or permit applicable to the Company, and (iv) do not conflict with any
provision of the corporate charter or bylaws of the Company or any
agreement or other instrument binding upon the Company.
(b) The execution, delivery, and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
will result in valid and
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legally binding obligations of the Company enforceable against it in
accordance with the respective terms and provisions hereof and
thereof.
(c) The execution, delivery, and performance of this
Amendment and the Advisory Agreement, as modified by this Amendment,
and the consummation by the Company of the transactions contemplated
hereby and thereby do not require any approval or consent of, or
filing with, any governmental agency or authority.
5. Ratification. Except as expressly amended hereby, the Advisory
Agreement and the Advisor's Warrants are hereby ratified and confirmed in all
respects and shall continue in full force and effect. This Amendment and the
Advisory Agreement shall hereafter be read and construed together as a single
document, and all references to the Advisory Agreement or any agreement or
instrument related to the Advisory Agreement shall hereafter refer to the
Advisory Agreement as amended by this Amendment.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas (without reference
to conflict of laws).
In Witness Whereof, the Company and the Advisor have executed this
Amendment as of the date first above written.
WATERMARC FOOD MANAGEMENT CO.
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
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Title: President & Chief Operating
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Officer
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XXXXXXX XXXXXX XXXXX
By: /s/ XXXXXXX X. XXXXXXXX
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Name: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Sr. VP
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/s/ XXXXXX X. XXXXXXXXXX
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Xxxxxx X. Xxxxxxxxxx
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