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EXHIBIT 10.2
AMENDMENT #1 TO SECURED CONVERTIBLE NOTE PURCHASE
AGREEMENT
This Amendment #1 (the "Amendment") to the Secured Convertible Note
Purchase Agreement (the "Purchase Agreement") between Altiva Financial
Corporation ("Altiva") and Value Partners, Ltd. ("Value Partners") dated as of
August 31, 1999 is entered into as of December 13, 1999.
RECITALS
WHEREAS, Altiva and Value Partners are parties to the Purchase Agreement;
and
WHEREAS, the parties wish to increase the principal amount of 12% Secured
Convertible Notes that may be issued pursuant to the Purchase Agreement by
$250,000;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged Altiva and Value Partners agree as follows,
1. Section 1.1 of the Purchase Agreement is amended as follows:
a. A definition of the term "Additional Notes" shall be added
and shall read as follows: "'Additional Notes' means up to $250,000 principal
amount of 12% Secured Convertible Notes due 2006 which may be issued and sold
by the Company and purchased by the Purchaser pursuant to this Agreement
substantially in the form of Exhibit B hereto, as amended, supplemented or
otherwise modified from time to time."
b. A definition of the term "Initial Notes" shall be added and
shall read as follows: "'Initial Notes' means $7,000,000 principal amount of
12% Secured Convertible Notes due 2006 which may be issued and sold by the
Company and purchased by the Purchaser pursuant to this Agreement substantially
in the form of Exhibit B hereto, as amended, supplemented or otherwise modified
from time to time."
c. The definition of the term "Notes" shall be amended to read
as follows: "'Notes' shall mean the Initial Notes and the Additional Notes."
d. A definition of the term "Participation Agreement" shall be
added and shall read as follows: "'Participation Agreement' means the
participation agreement referred to in Section 6.13 hereof, as amended,
supplemented or otherwise modified from time to time."
e. The definition of the term Previously Disclosed shall be
amended to read as follows: "'Previously Disclosed' means, with respect to the
Initial Closing, disclosed
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in a letter dated the date hereof delivered from the Company to the Purchaser
or from the Purchaser to the Company, as applicable, specifically referring to
the appropriate section of this Agreement and describing in reasonable detail
the matters contained therein. With respect to any Additional Closing,
'Previously Disclosed' shall mean a letter dated as of a date on or prior to
the date of such Additional Closing, delivered from the Company to the
Purchaser or from the Purchaser to the Company, as applicable, specifically
referring to the appropriate section of this Agreement and describing in
reasonable detail the matters contained therein."
2. Article II of the Purchase Agreement is hereby amended to read as
follows:
"SECTION 2.1 PURCHASE AND SALE OF NOTES. Subject to the terms and
conditions herein set forth: (i) the Company agrees that it will issue and sell
to the Purchaser and the Purchaser agrees that it will purchase from the
Company the principal amount of Initial Notes set forth opposite such
Purchaser's name on Exhibit A hereto at a price equal to such principal amount;
and (ii) the Company agrees that it will issue and sell to the Purchaser and
the Purchaser agrees that it will purchase from the Company the principal
amount of Additional Notes set forth opposite such Purchaser's name on Exhibit
A hereto, as such exhibit may be amended, modified or supplemented by the
parties from time to time.
SECTION 2.2 CLOSING. Subject to the satisfaction or waiver of all of the
conditions to the parties' obligations hereunder specified in Article IV of
this Agreement: (i) the purchase and sale of the Initial Notes will take place
at a closing (the "Initial Closing") to be held at the offices of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, LLP, in Baltimore, Maryland, at such time and on such day
as the parties hereto mutually agree upon; and (ii) the purchase and sale of
the Additional Notes will take place at a closing to be held at the offices of
▇▇▇▇▇▇▇, Baetjer and ▇▇▇▇▇▇, LLP, in Baltimore, Maryland (or at such other
place as may be mutually designated by the parties), at such time and on such
day as the parties hereto mutually agree upon (the "Additional Closing," and
together with the Initial Closing the "Closing"). The date on which a Closing is
to occur is referred to herein as a 'Closing Date.'"
3. The introduction to Section 4.2 of the Purchase Agreement and
paragraphs (b), (c) and (g) of such section are hereby amended to read as
follows:
"SECTION 4.2 CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. Except as
otherwise specified in this Section 4.2, the obligations of the Purchaser to
fulfill its obligations under Section 2.1 hereof shall be subject to the
satisfaction or waiver prior to the Closing relating to the Initial Notes and
the Additional Notes, as applicable, of the following conditions:"
"(b) The Company shall have delivered to the Purchaser a duly executed
Note, registered in the name of the Purchaser, sufficient to evidence the Note
to be issued and sold by the Company and purchased by the Purchaser, as set
forth on Exhibit A hereto, as amended, modified or supplemented by the parties
from time to time, against payment
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therefor to the Company in an amount equal to the principal amount thereof."
"(c) The Purchaser shall have received, in form and substance reasonably
satisfactory to it, (i) opinions, addressed to the Purchaser and dated the
Closing Date, of King & Spalding and ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, LLP special
counsel to the Company, with respect to the indicated matters set forth in
Exhibit F hereto and (ii) with respect to the Initial Closing, the opinions
delivered pursuant to Sections 8.11 and 9.05 of the Stock Purchase Agreement,
addressed to the Purchaser or otherwise indicated therein or in an accompanying
document that they may be relied upon by the Purchasers as if addressed
directly to them."
"(g) The Purchaser and ▇. ▇▇▇▇ Price shall have entered into a
Participation Agreement, substantially in the form previously provided by the
Purchaser to the Company, pursuant to which ▇. ▇▇▇▇ Price shall purchase a
participation interest in the Notes issued to the Purchaser pursuant to this
Agreement as set forth therein."
4. The introduction to Section 4.3 of the Purchase Agreement and
paragraph (b) of such section are hereby amended to read as follows:
"SECTION 4.3 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
obligations of the Company to fulfill its obligations under Section 2.1 hereof
shall be subject to the satisfaction or waiver prior to the Closing relating to
the Initial Notes and the Additional Notes, as applicable, of the following
conditions:"
"(b) The Purchaser shall have delivered to the Company a dollar amount
equal to the principal amount of the Notes to be issued and sold by the Company
and purchased by the Purchaser pursuant to this Agreement, as set forth on
Exhibit A hereto, as amended, modified or supplemented by the parties from time
to time, such amount to be payable (i) by wire transfer of immediately
available funds to an account with a bank designated by the Company, by notice
to the Purchaser to be provided no later than two Business Days prior to the
Closing Date, or (ii) a federal (same day) funds check payable to the order of
the Company."
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4. Section 6.13 of the Purchase Agreement is hereby amended as follows:
"SECTION 6.13 PARTICIPATION INTERESTS. The Company acknowledges and
agrees that (i) immediately following the Closing relating to the Initial Notes
the Purchaser will sell an undivided participation interest in the Initial Note
acquired by it in the amount of $2,000,000 to ▇. ▇▇▇▇ Price Recovery Fund II,
L.P. ("▇. ▇▇▇▇ Price") pursuant to a Participation Agreement of even date
herewith, (ii) immediately following the Closing relating to the Additional
Notes the Purchaser will sell an undivided participation interest in the
Additional Note acquired by it in the amount of $250,000 to ▇. ▇▇▇▇ Price
pursuant to an amended Participation Agreement and (iii) the Purchaser or any
other registered holder of a Note shall have the right to sell additional
participation interests in the Notes to ▇. ▇▇▇▇ Price and/or any other third
party (individually a 'Participant' and collectively the 'Participants') on
such terms as it may determine in its sole discretion. The Company acknowledges
that the original intent of the parties hereto and ▇. ▇▇▇▇ Price was for ▇.
▇▇▇▇ Price to be a party to this Agreement and an acquirer of a Note or Notes
with an aggregate principal amount of $2,000,000, that the Purchaser entered
into this Agreement on the condition that ▇. ▇▇▇▇ Price be permitted to
purchase a participation interest in the Notes and that the transaction was
restructured to provide for ▇. ▇▇▇▇ Price's acquisition of a participation
interest in the Notes in such amount solely because the Company is not eligible
under the terms of certain of the mortgage-related securities included in the
collateral subject to the Security Agreement to pledge an interest in such
collateral directly to ▇. ▇▇▇▇ Price. Accordingly, the Company covenants and
agrees that (i) the Purchaser or any other registered holder of a Note shall be
entitled to obtain on behalf of an applicable Participant the benefits of this
Agreement and each Related Agreement and (ii) the Company shall take such
action as may be necessary or advisable in order to enable the Purchaser or any
other registered holder of a Note to do the same and shall not at any time
insist upon, plead or in any manner whatsoever claim that a Participant is not
indirectly entitled to a right or benefit available to a registered holder of a
Note under this Agreement or any Related Agreement because it is a Participant
and not such a registered holder. Without in any way limiting the foregoing,
the Company acknowledges and agrees that its obligations under the Registration
Rights Agreement are for the benefit of both the holders of the Notes and
Participants and that any shares of Common Stock acquired by a Participant upon
conversion of a Note or Notes in which such Participant holds a participation
interest shall be subject to the terms of the Registration Rights Agreement
until such shares are no longer 'Transfer Restricted Securities,' as such term
is defined therein."
5. Section 6.14 of the Purchase Agreement is hereby deleted in its
entirety.
6. Exhibit A to the Purchase Agreement is hereby amended to read as set
forth in Exhibit A hereto.
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7. It is understood that the parties are entering into this Amendment
to facilitate the issuance of an additional $250,000 principal amount of Notes.
In connection with the Closing related to such issuance, the parties agree to
waive the following provisions:
(a) Value Partners hereby waives the conditions to Closing
contained in Sections 4.2(c) and 4.2(f) of the Purchase Agreement, provided
that the consents referred to in the latter section are obtained within two
Business Days after such Closing; and
(b) The Company hereby waives the requirement to deliver a
certificate specified in the condition to closing contained in Section 4.3(a)
of the Agreement.
8. RECITALS; INCORPORATION.
(a) The Company represents and warrants to the Purchaser that the
Recitals to this Amendment are (i) true and accurate and (ii) an integral part
of this Amendment.
(b) Terms not otherwise defined herein shall have the meaning set
forth in the Purchase Agreement.
9. AMENDMENT EFFECT.
This Amendment is supplementary to the Purchase Agreement and the Related
Agreements. All of the provisions of the Purchase Agreement and the Related
Agreements, including, without limitation, the right to declare principal and
accrued interest on the Notes due for any cause specified therein and the
validity of all Liens created thereby, shall remain in full force and effect,
except as herein expressly modified. The Purchase Agreement and the Related
Agreements and all rights and powers created thereby and thereunder are in all
respects ratified and confirmed. From and after the date hereof, the Purchase
Agreement shall be deemed to be amended and modified as herein provided, but,
except as so amended and modified, the Purchase Agreement shall continue in
full force and effect and the Purchase Agreement and this Amendment shall be
read, taken and construed as one and the same instrument. On and after the date
hereof, the term "the Agreement" as used in all of the Related Agreements and
"this Agreement" as used in the Purchase Agreement shall mean the Purchase
Agreement as amended hereby.
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. This Amendment
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. To induce the Purchaser to enter into this
Amendment, the Company hereby represents and warrants to the Purchaser that:
(i) The execution and delivery of this Amendment, and the performance
by the Company of its obligations under this Amendment, the
Purchase Agreement and the Related Agreements, as amended, are
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within the Company's corporate powers, have been duly authorized by
all necessary corporate action, have received all necessary
approvals of Governmental Entities and do not and will not
contravene or conflict with any provisions of law or the Articles
of Incorporation or Bylaws of the Company or any Subsidiary of the
Company or of any agreement binding upon the Company or any
Subsidiary of the Company;
(ii) This Amendment, and each other instrument executed by the Company
concurrently herewith, is the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with
its terms, except as enforcement thereof may be subject to the
effect of applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
and to general principles of equity (regardless of whether such
enforcement is sought in a proceeding in equity or at law);
(iii) Except as Previously Disclosed, all of the representations and
warranties of the Company made in the Purchase Agreement and the
Related Agreements are true and correct as of the date hereof,
except where such representation or warranty specifically relates
to an earlier date. The Company hereby expressly remakes and
reaffirms each and every representation, warranty and covenant set
forth in the Purchase Agreement and the Related Agreements and for
the benefit of the Purchaser, as if made on the date herein and
fully set forth herein.
(iv) Except as otherwise provided herein, no Event of Default or Default
under the Notes exists and the Company is in full compliance with
all the terms, conditions and provisions of the Purchase Agreement
and the Related Agreements.
11. REIMBURSEMENT OF EXPENSES. The Company agrees to pay all reasonable
costs and expenses (including, without limitation, attorneys' fees and
expenses) incurred by the Purchaser and ▇. ▇▇▇▇ Price in connection with the
negotiation, preparation and execution of this Amendment and acknowledges that
such costs and expenses may be deducted from any amount payable by the
Purchaser to the Company in connection with the issuance of Additional Notes.
12. SEVERABILITY. If any provision (in whole or in part) of this
Amendment, the Purchase Agreement or the Related Agreements or the application
thereof to any Person or circumstances is held invalid or unenforceable, then
such provision shall be deemed modified, restricted or reformulated to the
extent and in the manner necessary to render the same valid and enforceable, or
shall be deemed excised from this Amendment, the Purchase Agreement or the
Related Agreement, as applicable, and this Amendment and such
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other agreements shall be construed and enforced to the maximum extent
permitted by law, as if such provision had been originally incorporated herein
or therein, as applicable. The parties further agree to seek a lawful
substitute for any provision found to be lawful. If such modification,
restriction or reformulation is not reasonably possible, the remainder of this
Amendment, the Purchase Agreement or the Related Agreements, as applicable, and
the application of such provision to other Persons or circumstances will not be
affected thereby and the provisions of this Amendment, the Purchase Agreement
or the Related Agreements shall be severable in any such instance.
13. WAIVER OF CLAIMS. The Company hereby acknowledges, agrees and
affirms that it possesses no claims, defenses, offsets, recoupment or
counterclaims of any kind or nature against or with respect to the enforcement
of the Purchase Agreement or any Related Agreement or any amendments thereto
(collectively, the "Claims"), nor does the Company now have knowledge of any
facts that would or might give rise to any Claims. If facts now exist which
would or could give rise to any Claim against or with respect to the
enforcement of the Purchase Agreement or any Related Agreement, as amended by
the amendments thereto, the Company hereby unconditionally, irrevocably and
unequivocally waives and fully releases any and all such Claims as if such
Claims were the subject of a lawsuit, adjudicated to final judgment from which
no appeal could be taken and therein dismissed with prejudice.
14. GOVERNING LAW. THE PARTIES HERETO ACKNOWLEDGE THAT THE TRANSACTIONS
CONTEMPLATED BY THE PURCHASE AGREEMENT AND THE NOTES BEAR A REASONABLE RELATION
TO THE STATE OF MARYLAND IN THAT, INTERALIA, ▇. ▇▇▇▇ PRICE HAS ITS PRINCIPAL
PLACE OF BUSINESS IN THE STATE OF MARYLAND, PART OF THE NEGOTIATIONS RELATING
TO THE TRANSACTIONS CONTEMPLATED HEREBY HAS OCCURRED IN THE STATE OF MARYLAND
AND THE CLOSING WILL OCCUR IN SUCH STATE. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
15. REPRESENTATION BY COUNSEL. The Company hereby represents that it has
been represented by competent counsel of its choice in the negotiation and
execution of this Amendment, the Purchase Agreement and the Related Agreements;
that it has read and fully understands the terms hereof; that the Company and
its counsel have been afforded an opportunity to review, negotiate and modify
the terms of this Amendment; and that it intends to be bound hereby.
16. HEADINGS. The descriptive headings of the various provisions of this
Amendment, the Purchase Agreement and the Related Agreements are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof. Section references in the
Purchase Agreement shall be deemed to refer to the applicable Section set forth
in this Amendment.
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17. COUNTERPARTS. This Amendment, the Purchase Agreement and the Related
Agreements may be executed in any number of counterparts, and by the different
parties hereto and thereto on the same or separate counterparts, each of which,
when so executed and delivered shall be deemed to be an original; all the
counterparts for each such agreement shall together constitute one and the same
agreement.
18. FAX EXECUTION. For purposes of negotiating and finalizing this
Amendment (including any subsequent amendments thereto), any signed document
transmitted by facsimile machine ("FAX") shall be treated in all manner and
respects as an original document. The signature of any party by FAX shall be
considered for these purposes as an original signature. Any such FAX document
shall be considered to have the same binding legal effect as an original
document. The undersigned parties hereby agree that neither shall raise the use
of the FAX or the fact that any signature or document was transmitted or
communicated through the use of a FAX as a defense to the formation of this
Amendment.
19. NO THIRD PARTY BENEFICIARIES. This Amendment is solely for the
benefit of the Purchaser and its successors and assigns (except as otherwise
expressly provided herein) and nothing contained herein shall be deemed to
confer upon any other Person any right to insist on or to enforce the
performance or observance of any of the obligations contained herein. All
conditions to the obligations of the Purchaser to purchase Additional Notes
hereunder are imposed solely and exclusively for the benefit of the Purchaser
and its successors and assigns and no other Person shall have standing to
require satisfaction of such conditions in accordance with their terms and no
other Persons shall under any circumstances be deemed to be a beneficiary of
such conditions.
20. TEXAS LANGUAGE.
(a) THE PURCHASE AGREEMENT, TOGETHER WITH THE RELATED AGREEMENTS,
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES THERETO WITH RESPECT TO THE
MATTERS COVERED THEREBY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
(b) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES HERETO.
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EXECUTED as of the date first above written.
VALUE PARTNERS, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Partner of ▇▇▇▇▇ & Partners,
general partner of Value Partners, Ltd.
Its: General Partner
ALTIVA FINANCIAL CORPORATION.
/s/ ▇▇▇▇▇▇. ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
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EXHIBIT A
TO SECURED CONVERTIBLE NOTE
PURCHASE AGREEMENT
Purchaser of Initial Notes: Principal Amount of Initial Notes: $7,000,000
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Value Partners, LTD
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (TEL)
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
Purchaser of Additional Notes: Principal Amount of Additional Notes: $ 250,000
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Value Partners, LTD
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (W)
(▇▇▇) ▇▇▇-▇▇▇▇ (FAX)
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