Exhibit 10.44
AMENDMENT NO. 1 TO NOTE PURCHASE
AGREEMENT
THIS AMENDMENT NO. 1 TO NOTE
PURCHASE AGREEMENT (this “ Amendment ”) is
entered into as of March 6, 2009, but effective as of the
Effective Date (as defined below), by and among KMG CHEMICALS,
INC., a Texas corporation (“ KMG Chemicals ”),
KMG-BERNUTH, INC., a Delaware corporation (“
KMG-Bernuth ”), and KMG ELECTRONIC CHEMICALS, INC., a
Texas corporation (“ KMG ECI ” and, together
with KMG Chemicals and KMG-Bernuth, collectively, the “
Companies ” and each, individually, a “
Company ”), and the undersigned holders of Notes (as
hereinafter defined).
Recitals
A.
The Companies entered into a Note Purchase Agreement dated as of
December 31, 2007 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “
Note Agreement ”), with the several Purchasers (as
defined in the Note Agreement) listed in the Purchaser Schedule
attached thereto, pursuant to which the Companies issued and sold
to such Purchasers the Companies’ 7.43% Senior Secured Notes
due December 31, 2014, in the aggregate principal amount of
$20,000,000 (together with any such promissory notes that may have
been issued in substitution or exchange therefor prior to the date
hereof, the “ Notes ”).
B.
The Companies desire to make certain amendments and modifications
to the Note Agreement, as set forth in this Amendment, and the
undersigned holders of Notes, subject to the terms and conditions
set forth herein, are willing to agree to such amendments and
modifications.
NOW, THEREFORE, in consideration of
the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1.
Definitions . Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them
in the Note Agreement.
2.
Amendments to Schedule B (Defined Terms)
.
(a)
Schedule B of the Note Agreement is hereby amended by
restating the following definitions to read in their entirety as
follows:
“ EBIDA ” means,
with respect to an applicable Person for the applicable period, Net
Income, plus , to the extent deducted in determining Net
Income, the sum of (without duplication) Interest Expense,
Amortization Expense, Depreciation Expense, Extraordinary Expense
and all other non-cash charges, all determined in accordance with
GAAP.
“ EBITDA ” means,
with respect to an applicable Person for the applicable period, Net
Income, plus , to the extent deducted in determining Net
Income, the sum of (without duplication) Interest Expense, Income
Tax Expense, Amortization Expense, Depreciation Expense,
Extraordinary Expense and all other non-cash charges, all
determined in accordance with GAAP.
(b)
Schedule B of the Note Agreement is hereby amended by adding
the following new definition in the appropriate alphabetical
position therein:
