AMENDMENT NO. 1
TO
NOTE PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT (this "Amendment No.
1"), dated as of November 27, 1996(1), is made by and among AmeriKing, Inc.
(formerly NRE Holdings, Inc.), a Delaware corporation (the "Company"), National
Restaurant Enterprises, Inc., a Delaware corporation, and a wholly-owned
subsidiary of Holdings ("NRE"), and PMI Mezzanine Fund L.P., a Delaware limited
partnership (the "PMI"). Capitalized terms not defined herein shall have the
meanings ascribed to them in the Note Purchase Agreement, dated as of February
7, 1996, among the Company, NRE and PMI (the "Note Purchase Agreement").
W I T N E S S E T H:
WHEREAS, the Company, NRE and PMI are parties to the Note Purchase
Agreement; and
WHEREAS, Section 3.3 of the Note Purchase Agreement provides for the
prepayment of the Subordinated Notes upon the occurrence of certain events; and
WHEREAS, the Company, NRE and PMI wish to amend Section 3.3 to provide
for a modified prepayment premium with respect to the Subordinate Notes in the
event the Company exercises its Special Call Right pursuant to Section 18 of
Amendment No. 1 to Common Stock Purchase Warrants, dated as of the date hereof,
and as set forth herein; and
WHEREAS, PMI wishes to waive the Company's notice requirements
pursuant to Section 3 of the Note Purchase Agreement in connection with the
Company's proposed prepayment of the Subordinated Notes upon the consummation
of the Company's public offering of securities, including Common Stock, as
described in Amendment No. 4 to the Registration Statement on Form S-1 filed on
November 1, 1996 (the "Offerings"); and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency which are hereby acknowledged, the parties agree that,
from and after the date hereof, the Note Purchase Agreement be, and hereby is,
amended as follows:
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(1) This is our expected pricing date; we would look to have this signed the
night that we price; if the offerings price but do not close within 5
business days, this Agreement will be deemed void.
A G R E E M E N T:
SECTION 1. Amendment. Effective as of the date hereof, the Note
Purchase Agreement shall be amended as follows:
1.1. The following definition shall be inserted in appropriate
alphabetical order in Section 2 of the Note Purchase Agreement:
"Offering Prepayment Premium" shall mean an amount equal to
$2,700,000.
1.2. The definition of "Applicable Prepayment Premium" shall be
amended by inserting the following at the end of the first sentence thereof:
"plus, in the event that the Company has exercised its Special
Call Right pursuant to Section 18 of the Warrants, the Offering
Prepayment Premium".
SECTION 2. Effective Date. This Amendment No. 1 shall take effect on
the date hereof; provided, that in the event a closing of the Offering at which
the Subordinated Notes are paid in full along with any Applicable Prepayment
Premium (the "Closing") does not occur within five (5) Business Days of the
date hereof, this Amendment No. 1 shall be deemed void and shall be of no
further force and effect.
SECTION 3. Waiver of Notice. PMI hereby waives any applicable notice
requirements in connection with the prepayment of the Subordinated Notes with
the net proceeds of the Offerings at the closing of such Offerings.
SECTION 4. Effect of this Amendment No. 1 on the Other Terms of the
Note Purchase Agreement. Except as expressly amended and modified herein, all
other terms of the Note Purchase Agreement shall remain in full force and
effect as originally made and entered into by the parties thereto.
SECTION 5. Governing Law. This Amendment No. 1 shall be governed by
and construed in accordance with the laws of the State of New York (excluding
provisions relating to choice of law).
SECTION 6. Necessary Documents. The parties hereto agree to execute or
cause to be executed at any time, any and all other documents or instruments
necessary to carry out the terms of this Agreement.
SECTION 7. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument, and all
signatures need not appear on any one counterpart.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
AMERIKING, INC.
By:
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Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
NATIONAL RESTAURANT ENTERPRISES,
INC.
By:
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Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
PMI MEZZANINE FUND, L.P.,
a Delaware limited partnership
By: Pacific Mezzanine Investors, L.L.C.
a Delaware limited liability company,
its General Partner
By:
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Name:
Title:
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