EXHIBIT 4.17
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AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
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This Amendment No. 1 to Securities Purchase Agreement (this "AMENDMENT"),
dated April __, 2003, is made by and among Peabodys Coffee, Inc., a Nevada
corporation (d/b/a Black Rhino Coffee) with its headquarters located at 0000
Xxxxxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxx 00000 (the "COMPANY") and AJW
Partners, LLC, AJW Offshore, Ltd. and AJW Qualified Partners, LLC (collectively,
the "INVESTORS").
WHEREAS:
The Company and the Investors are parties to that certain Securities
Purchase Agreement, dated December 20, 2002 (the "SECURITIES PURCHASE
AGREEMENT"); and
The Company and the Investors desire to amend the Securities Purchase
Agreement as set forth below.
NOW, THEREFORE, the Company and the Investors hereby agree as follows:
1. AMENDMENT OF SECTION 8(G) OF THE SECURITIES PURCHASE AGREEMENT. Section
8(g) of the Securities Purchase Agreement is hereby amended and restated to
read in its entirety as follows:
"(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their successors and assigns. Neither
the Company nor any Buyer shall assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other; provided,
however, that subject to Section 2(f), any Buyer may assign this Agreement,
including, but not limited to, the Company's representations, warranties,
covenants and agreements contained herein, or any of the Buyer's rights or
obligations hereunder to any person that purchases Securities in a private
transaction from a Buyer or to any of its "affiliates," as that term is defined
under the 1934 Act, without the consent of the Company, and provided further,
that the Buyers shall not assign this Agreement or any rights or obligations
hereunder until the completion of the subsequent investment pursuant to Section
4(l) hereof."
2. AMENDMENT OF SECTION 8(I) OF THE SECURITIES PURCHASE AGREEMENT. Section
8(i) of the Securities Purchase Agreement is hereby amended and restated to
read in its entirety as follows:
"(i) SURVIVAL. The representations and warranties of the Company and
the agreements and covenants set forth in Sections 3, 4, 5 and 8 shall survive
the closing hereunder notwithstanding any due diligence investigation conducted
by or on behalf of the Buyers for a period of two (2) years from the date that
the subsequent investment is completed pursuant to Section 4(l) hereof. The
Company agrees to indemnify and hold harmless each of the Buyers and all their
officers, directors, employees and agents for loss or damage arising as a result
of or related to any breach or alleged breach by the Company of any of its
representations, warranties and covenants set forth in Sections 3 and 4 hereof
or any of its covenants and obligations under this Agreement or the Registration
Rights Agreement, including advancement of expenses as they are incurred."
3. NO OTHER PROVISIONS OR DOCUMENTS AFFECTED HEREBY. This Amendment does not
affect any other provisions of the Securities Purchase Agreement or the
provisions of any other document entered into in connection with the
transactions set forth therein.
[Signatures on the Following Page]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
PEABODYS COFFEE, INC.
______________________________________
Xxxx X. Xxxxxxx
President
AJW PARTNERS, LLC
By: SMS Group, LLC
______________________________________
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
______________________________________
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED, LLC
By: AJW Manager, LLC
____________________________________
Xxxxx X. Xxxxxxxx
Manager
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