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EXHIBIT 10.64
SECOND AMENDMENT TO AMENDED AND RESTATED
NOTE AND WARRANT PURCHASE AGREEMENT
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED NOTE AND WARRANT
PURCHASE
AGREEMENT is dated as of December 23, 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.
RECITALS
A.
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").
B.
The
Company has requested that Agent and the Purchasers amend
certain provisions of the Purchase Agreement relating to the
Capital
Expenditures limitation for the fiscal year 2005, and Agent and the
Purchasers
are willing to do so on the terms and conditions set forth in this
Amendment.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as
follows:
SECTION 1 Incorporation of Purchase 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.
SECTION 2 Amendment.
Subject to
the satisfaction of the conditions precedent set forth in
Section 3 below, Section 8.10 of the Purchase Agreement shall be
and hereby is
amended by deleting the amount "$5,720,000" for fiscal year 2005
and replacing
it with the amount "$7,000,000."
SECTION 3 Conditions Precedent.
The
effectiveness of this Amendment is subject to the satisfaction of
all
of the following conditions precedent:
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3.1 The Company,
Agent, the Purchasers and the Guarantors shall
have
executed and delivered this Amendment.
3.2 Legal
matters incident to the execution and delivery of this
Amendment
shall be satisfactory to Agent and its counsel.
3.3 Agent shall
have received a certified copy of an amendment to
the Senior
Credit Agreement (a) increasing the capital expenditures
limitation
covenant therein to an amount not less than $7,000,000 for
fiscal
year 2005 and (b) amending the Fixed Charge Coverage Ratio to
levels
satisfactory to Agent, and which shall otherwise be in form and
substance
acceptable to Agent.
3.4 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.
3.5 The Borrower
shall have paid to Agent, for its benefit, an
amendment
fee in the amount of $2,500.00.
SECTION 4 Representations.
In order
to induce Agent and the Purchasers to execute and deliver this
Amendment, the Company and the Guarantors hereby represent and
warrant to the
Purchasers and Agent that as of the date hereof, and after giving
effect to this
Amendment, (a) this Amendment has been duly authorized by all
necessary
corporate action on the part of the Company and the Guarantors, has
been duly
executed by the Company and the Guarantors, constitutes the legal,
valid and
binding obligation of the Company and the Guarantors, and is
enforceable against
the Company and the Guarantors in accordance with its terms; (b) no
Event of
Default exists under the Purchase Agreement; (c) 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 d
