Exhibit 4.3
FIRST AMENDMENT TO AMENDED AND
RESTATED REGISTRATION RIGHTS
AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
("Amendment") is dated as of March 13, 2001, among MCM CAPITAL GROUP, INC., a
Delaware corporation ("Company"). C.P. INTERNATIONAL INVESTMENTS LIMITED, a
Bahamian company (together with its Affiliated Stockholders, "CPII"). CTW FUNDING,
LLC, a Delaware limited liability company ("CTW"), and the MCM Holding Distributees
Majority (together with each of the persons whose names are listed on Schedule A
hereto and their respective Affiliated Stockholders, if any, the "MCM Holding
Distributees").
FACTUAL BACKGROUND
A. Under the Credit and Security Agreement dated as of October 31,
2000 (the
"Credit Agreement"). CTW agreed to make available to Midland Credit Management,
Inc., a
Kansas corporation ("Midland") a revolving credit facility upon the terms and
conditions set forth
therein.
B. To induce CTW to enter into the Credit Agreement, Company and CTW
entered
into the Warrant Agreement dated as of October 31, 2000 (the "Warrant Agreement")
by and
between Company and CTW.
C. To induce CTW to enter into the First Amendment to Credit
Agreement, dated as
of March 13, 2001 (the "Credit Amendment"), among Midland, CTW, Company and Midland
Acquisition Corporation, Company has agreed (i) to issue to CTW, warrants to
purchase up to
an additional 200,000 shares of Common Stock; 50,000 to be issued on the date of
each
Renewal Notice (as defined in the Credit Amendment) and (ii) to grant certain
registration rights
to CTW with respect to the Common Stock underlying the Warrants.
D. The parties to this Amendment are parties to that certain Amended
and Restated
Registration Rights Agreement, dated as of October 31, 2000 (the "Registration
Rights
Agreement"), and it is a condition of the execution and delivery by CTW of the
Credit
Amendment that the Company enter into this Amendment. (Capitalized terms used
herein
without definition have the meanings given to them in the Registration Rights
Agreement.)
AGREEMENT
Therefore, the parties hereto agree as follows:
1. Modification of Registration Rights Agreement. The Registration
Rights Agreement is hereby amended as follows:
(a) Warrant Agreement. Section 11 of the Registration Rights
Agreement is hereby amended by adding the following definition:
"Warrant Agreement" means,
notwithstanding the definition
contained in the Recitals of this
Agreement, that certain Warrant
Agreement, dated October 31, 2000
between the Company and CTW, as
amended, supplemented or otherwise
modified from time to time.
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(b) Warrants. The definition of 'Warrants" in Section 11 is
hereby amended by replacing such definition with the following definition:
"Warrants" means, notwithstanding the
definition contained in the Recitals
of this Agreement, the warrants to
purchase Common Stock issued by the
Company to CTW pursuant to the Warrant
Agreement.
2. Incorporation. This Amendment shall form a part of the Registration Rights
Agreement, and all references hereafter to the Registration Rights Agreement in any
document executed in connection with the Registration Rights Agreement shall mean
the Registration Rights Agreement as hereby modified.
3. No Impairment. Except as specifically hereby amended, the Registration
Rights Agreement shall remain unaffected by this Amendment and shall remain in full
force and effect.
4. Integration. The Registration Rights Agreement and this Amendment:
(a) integrate all the terms and conditions mentioned in or incidental to the
Registration Rights Agreement and this Amendment; (b) supersede all oral
negotiations and prior and other writings with respect to their subject matter; and
(c) are intended by the parties as the final expression of the agreement with
respect to the terms and conditions set forth in those documents and as the
complete and exclusive statement of the terms agreed to by the parties. If there
is any conflict between the terms, conditions and provisions of this Amendment and
those of any other agreement or instrument, including any of the Loan Documents (as
defined in the Credit Agreement), the terms, conditions and provisions of this
Amendment shall prevail.
5. Miscellaneous. This Amendment and any attached consents or exhibits
requiring signatures may be executed in counterparts, and all counterparts shall
constitute but one and the same document. If any court of competent jurisdiction
determines any provision of this Amendment or the Registration Rights Agreement to
be invalid, illegal or unenforceable, that portion shall be deemed severed from the
rest, which shall remain in full force and effect as though the invalid, illegal or
unenforceable portion had never been a part of this Amendment or the Registration
Rights Agreement. As used here, the word "include(s)" means "includes(s), without
limitation," and the word "including" means "including, but not limited to."
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to its
principles or rules of conflict of laws to the extent such principles or rules
would require or permit the application of the laws of another jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their
proper and duly authorized officers as of the day and year first above written.
MCM CAPITAL GROUP, INC.
By: /s/ Timothy W. Moser
Name: Timothy W. Moser
Title: Executive Vice President
CTW FUNDING, LLC
By: /s/ Brian L. Schorr
Name: Brian L. Schorr
Title: Manager
MCM HOLDING DISTRIBUTEES MAJORITY
Triarc Companies, Inc.
By: /s/ John L. Barnes, Jr.
Name: John L. Barnes, Jr.
Title: Executive Vice President
By: /s/____Nelson Peltz______________
Name: Nelson Peltz
By: /s/____Peter W. May_____________
Name: Peter W. May
C.P. INTERNATIONAL INVESTMENTS LIMITED
By: /s/ David John Barnett
Name: David John Barnett
Title: Director
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SCHEDULE A
MCM HOLDING DISTRIBUTEES
Madison West Associates Corp.
Nelson Peltz Children's Trust
Jonathan P. May 1998 Trust
Leslie A. May 1998 Trust
Eric D. Kogan
Edward Garden
John L. Barnes, Jr.
JPAH Holdings, LLC
Brian L. Schorr
Stuart 1. Rosen
James A. Knight
Alex Lemond
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