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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.
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