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EXHIBIT 10.61
FIRST AMENDMENT TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED NOTE AND WARRANT
PURCHASE
AGREEMENT is made and entered into as of
February 8, 2005 (this "Amendment"), by
and among Harris Nesbitt Capital, Inc.
(f/k/a BMO Nesbitt Burns Capital (U.S.),
Inc.), a Delaware corporation ("HNC" or, in
its capacity as agent, "Agent"), BMO
Nesbitt Burns Employee Co-Investment Fund I
(U.S.) L.P., a Delaware limited
partnership ("U.S. Fund"), BMO Nesbitt
Burns Employee Co-Investment Fund Trust,
an Ontario trust ("Canada Trust"), JZ
Equity Partners PLC, a company formed
under the laws of England and Wales,
("Jordan"), Prism Mezzanine Fund SBIC,
L.P., a Delaware limited partnership
("Prism" and, together with HNC, U.S. Fund,
Canada Trust and Jordan, the "Purchasers"),
Morton Industrial Group, Inc., a
Georgia corporation (the "Company"), and
each of the Subsidiaries of the Company
executing a signature page hereto, as a
Guarantor.
WHEREAS, Agent, the Purchasers and certain other parties entered
into
that certain Amended and Restated Note and
Warrant Purchase Agreement dated as
of June 23, 2004 (as amended, modified or
restated from time to time, the
"Purchase Agreement");
WHEREAS, the Company has requested that the Agent and the
Purchasers
amend certain provisions of the Purchase
Agreement; and
WHEREAS, the parties hereto have agreed to so amend the
Purchase
Agreement in accordance with the terms of
this Amendment.
NOW, THEREFORE, in consideration of the premises set forth above
and
for other good and valuable consideration,
the receipt and sufficiency of which
is hereby acknowledged, the undersigned
parties agree as follows:
1. Incorporation of the Agreement.
All capitalized terms which are not
defined herein shall have the same meanings
as set forth in the Purchase
Agreement. Except as specifically set forth
herein, the Purchase Agreement shall
remain in full force and effect and its
provisions shall be binding on the
parties hereto. All references to "this
Agreement" and similar terms in the
Purchase Agreement shall mean the Purchase
Agreement as amended by this
Agreement.
2. Amendment of the Agreement. The
Purchase Agreement is hereby amended as
follows:
(a) The definition of
"Borrowing Base" contained in Section 5.1 of the
Purchase Agreement is hereby amended and
restated to read in its entirety as
follows:
"BORROWING BASE" shall have the meaning given such term
in the Senior Credit Agreement as amended on or about
February 8, 2005.
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(b) Section 8.10 of
the Purchase Agreement is hereby amended by
deleting the amount "$5,280,000" for Fiscal
Year 2004 and replacing it with the
amount "$5,400,000".
3. Conditions of Effectiveness. Upon
the satisfaction of all of the
following conditions precedent, this
Amendment shall be, and is hereby agreed to
by the parties hereto to be, effective from
and after December 31, 2004:
(a) the Borrower, the
Agent, the Lenders and the Guarantors shall have
executed and delivered this Amendment;
(b) the Agent shall
have received copies (executed or certified, as
may be appropriate) of all legal documents
or proceedings taken in connection
with the execution and delivery of this
Amendment to the extent the Agent or its
counsel may reasonably request;
(c) legal matters
incident to the execution and delivery of this
Amendment shall be satisfactory to the
Agent and its counsel;
(d) the Agent shall
have received a certified copy of an amendment to
the Senior Credit Agreement which shall be
in form and substance acceptable to
the Agent;
(e) the
representations and warranties of the Company contained in
Section 4 of this Amendment shall be true
and correct in all material respects
as of the date hereof and as of the
effective date of this Amendment; and
(f) the Company shall
have paid the Agent a fee for its account and
the account of the Purchasers in the amount
of $25,000.
4. Representations, Warranties and
Covenants of the Company. The Company
hereby represents, warrants and covenants
as follows:
(a) this Amendment has
been duly authorized by all necessary corporate
action on the part of the Company, has been
duly executed by the Company and
constitutes the legal, valid and binding
obligation of the Company, and is
enforceable against the Company in
accordance with its terms;
(b) upon the
effectiveness of this Amendment, the Company hereby
reaffirms that all covenants,
representations and warranties made in the
Purchase Agreement and the other Operative
Documents, to the extent that the
same are not amended hereby, are true and
complete in all material respects as
if remade as of the effective date of this
Amendment (except to the extent
stated to relate to a specific earlier
date, in which case such representations,
warranties and covenants are true and
correct as of such earlier date); and
(c) no Event of
Default exists under the Purchase Agreement.
5. Reference to the Effect on the
Purchase Agreement.
(a) Upon the
effectiveness of this Amendment, on and after the date of
this Amendment, each reference in the
Purchase Agreement to "this Agreement,"
"hereunder,"
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