EXHIBIT 4.3
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
AND SENIOR DISCOUNT NOTES
This Second Amendment to Note Purchase Agreement and Senior Discount
Notes (this "Amendment") dated as of August 13, 2001 is by and among Ampex Data
Systems Corporation (the "Issuer"), Ampex Corporation (the "Guarantor"), the
entities identified as "Purchasers" on the signature pages hereto (the
"Purchasers"), and DDJ Capital Management, LLC (the "Holders' Agent").
WHEREAS, the Issuer, the Guarantor, the Purchasers and the Holders'
Agent are parties to a certain Note Purchase Agreement dated as of November 6,
2000 (as amended, the "Note Purchase Agreement") with respect to $8,919,555.56
aggregate principal amount of Senior Discount Notes of Ampex Data Systems
Corporation (the "Senior Discount Notes"); and
WHEREAS, the parties have entered into an Amendment to the Note
Purchase Agreement and the Senior Discount Notes, dated as of May 30, 2001 (the
"First Amendment"), pursuant to which, among other things, the stated maturity
date of the Senior Discount Notes was extended from May 30, 2001 to August 31,
2001; and
WHEREAS, the Issuer and the Guarantor are parties to an Agreement,
dated December 1, 1994 (effective November 22, 1994), as amended (the "Hillside
Agreement"), by and among Hillside Capital Incorporated, a Delaware corporation
("Hillside"), and certain other parties named therein, which provides, among
other things, that if Hillside shall make requested contributions to a Plan (as
defined in the Hillside Agreement) the Guarantor shall issue, pursuant to
Section 2.3 of the Hillside Agreement, certain Contribution Notes (as so
defined) evidencing its obligation to repay such contributions in accordance
with the terms of such Contribution Notes and of the Hillside Agreement, and the
Issuer and the other members of the Ampex Group (as so defined) shall, pursuant
to Section 3.1 of the Hillside Agreement, guarantee ("Guarantee") payment of
such Contribution Notes jointly and severally with the Guarantor; and
WHEREAS, the Issuer and the Guarantor have requested that the
Purchasers and the Holders' Agent agree to further amend the Note Purchase
Agreement and the Senior Discount Notes (i) to extend the stated maturity date
of the Senior Discount Notes from August 31, 2001 to October 31, 2001 and (ii)
to permit the issuance of Contribution Notes and Guarantees pursuant to the
Hillside Agreement without giving rise to any default under the Note Purchase
Agreement or the Senior Discount Notes; and
WHEREAS, the Purchasers and the Holders' Agent are willing to amend
the Note Purchase Agreement and the Senior Discount Notes as requested on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Capitalized terms used herein without definition shall have the
meaning set forth in the Note Purchase Agreement or the First Amendment, as
applicable.
2. Notwithstanding anything to the contrary set forth in the Note
Purchase Agreement, the Notes, the First Amendment or the Letter Agreement, the
parties hereto do hereby agree that:
(a) The Senior Discount Notes shall mature and be due and
payable in full on the earliest to occur of (i) October 31, 2001,
(ii) a Mandatory Redemption Date, or (iii) a Designated Voluntary
Redemption Date (the earliest to occur of any of the foregoing
being hereinafter referred to as the "Redemption Date");
(b) On June 1, 2001, the Senior Discount Notes shall be
deemed to have an Accreted Value of $1,000 per $1,000 principal
amount of Senior Discount Notes;
(c) The Senior Discount Notes shall cease to accrete in
value from and after June 1, 2001 and instead, from June 2, 2001
through the Redemption Date, interest shall accrue on the unpaid
Accreted Value of the Senior Discount Notes at a rate of twenty
percent (20%) per annum, compounding on April 30th and October
31st of each year, and based on an annual period of twelve 30-day
months, which interest shall be due and payable in full in cash
on the Redemption Date; provided that if for any reason the
interest or other amounts payable in respect of the Senior
Discount Notes or otherwise under the Note Purchase Agreement are
found by a court of competent jurisdiction, in a final
determination, to exceed the limit which may be lawfully charged,
then the obligation of the Issuer to pay interest and other
charges shall automatically be reduced to such limit and, if any
amount in excess of such limit shall have been paid, then such
amount shall be refunded to the Issuer; and
(d) If the Issuer fails to pay to the Holders of the Senior
Discount Notes on or before the Redemption Date cash in an amount
equal to the sum of (A) the Accreted Value of the Senior Discount
Notes as of June 1, 2001, and (B) accrued and unpaid interest on
such Accreted Value as set forth above in Section 2(c) of this
Amendment, interest shall accrue
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on the unpaid portion of the Accreted Value of the Senior
Discount Notes (and on the unpaid portion of accrued interest) at
the Default Rate for each day from and after the Redemption Date
until the entire Accreted Value of the Senior Discount Notes and
all accrued interest thereon, shall have been paid in full.
3. Section 8.1 of the Note Purchase Agreement is hereby amended by
adding a new clause (g) thereto to read as follows:
"and; (g) unsecured Indebtedness of the Guarantor or any
Restricted Subsidiary to Hillside arising pursuant to the terms of the Hillside
Agreement in an aggregate outstanding amount not to exceed $1,500,000, the
proceeds of which Indebtedness shall be applied to fund required contributions
to a Plan (as defined in the Hillside Agreement), and which Indebtedness shall
be evidenced by Contribution Notes (as so defined), including any Guarantees (as
so defined) issued pursuant thereto; provided that none of the Issuer, the
Guarantor or any Restricted Subsidiary shall make any payments to Hillside in
respect of such Indebtedness, such Contribution Notes or such Guarantees prior
to the repayment in full of the entire Accreted Value of the Senior Discount
Notes and all accrued interest thereon, except that if no Default or Event of
Default shall have occurred and be continuing under this Agreement or the Senior
Discount Notes, the Guarantor and the Restricted Subsidiaries shall be permitted
to make monthly payments of interest only in respect of such Contribution Notes
at the rate and in accordance with the terms thereof and of the Hillside
Agreement."
4. The Guarantor hereby acknowledges, confirms, ratifies and agrees
that (i) pursuant to the provisions of Article XIV of the Note Purchase
Agreement, the Guarantor has guaranteed the obligations of the Issuer under the
Note Purchase Agreement and the Senior Discount Notes, (ii) as security for the
obligations of the Issuer and the Guarantor under the Note Purchase Agreement,
the Guarantor has granted to the Holders' Agent for the benefit of the Holders,
pursuant to the Collateral Security Agreement, a security interest in all of the
right, title and interest now owned or hereafter acquired by the Guarantor in
various royalties, license fees, receivables and other payment, and (iii) the
Note Purchase Agreement and the Collateral Security Agreement are presently and,
after giving effect to this Amendment, will continue to be valid and binding
obligations of the Guarantor enforceable in accordance with their respective
terms.
5. This Amendment shall become effective on the date that each of
the following conditions has been fulfilled to the satisfaction of the Holders'
Agent, provided that any or all of the following conditions may be waived, in
whole or in part, by the Holders' Agent in its sole discretion:
(a) The Issuer, the Guarantor, the Purchasers and the
Holders' Agent shall have executed and delivered to the Holders'
Agent an original of this Amendment; and
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(b) The Issuer and the Guarantor shall have executed and
delivered to the Holders' Agent such additional documents as the
Holders' Agent may reasonably request.
6. Each of the Issuer and the Guarantor acknowledges, represents and
warrants that neither the Issuer nor the Guarantor has any claim, cause of
action, defense, or right of set off against the Purchasers or the Holders'
Agent, and, to the extent that either the Issuer or the Guarantor has any such
rights, each of the Issuer and the Guarantor hereby releases, waives, and
forever discharges the Purchasers and the Holders' Agent (together with their
predecessors, successors and assigns) from each action, cause of action, suit,
debt, defense, right of set off, or other claim whatsoever, in law or in equity,
known or unknown against the Purchasers or the Holders' Agent.
7. This Amendment may be executed in counterparts, each of which shall be
an original and all of which shall constitute one and the same agreement.
8. This Amendment shall be governed and construed in accordance with the
laws of The Commonwealth of Massachusetts. If any provision of this Agreement is
in conflict with a statute or rule of the law of The Commonwealth of
Massachusetts, or is otherwise unenforceable for any reason whatsoever, such
provision shall be deemed null and void to the extent of such conflict or
unenforceability, but shall be deemed separable from and shall not invalidate
any other provisions of this Amendment.
9. This Amendment contains the final, complete, and exclusive expression
of the understandings between the parties regarding the transaction contemplated
by this Amendment.
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IN WITNESS WHEREOF, each of the undersigned parties through
their authorized representatives has executed and delivered this Amendment as an
instrument under seal as of the date set forth above.
"ISSUER"
AMPEX DATA SYSTEMS CORPORATION
By: /s/ Craig L. McKibben
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Name: Craig L. McKibben
Title: Vice President
"GUARANTOR"
AMPEX CORPORATION
By: /s/ Craig L. McKibben
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Name: Craig L. McKibben
Title: Vice President
"PURCHASERS"
B III CAPITAL PARTNERS, L.P.
By: DDJ Capital III, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ David J. Breazzano
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Name: David J. Breazzano
Title: Member
B III-A CAPITAL PARTNERS, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital Management, LLC, Manager
By: /s/ David J. Breazzano
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Name: David J. Breazzano
Title: Member
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State Street Bank & Trust, solely in its capacity as Custodian
for General Motors Employees Global Group Pension Trust as
directed by DDJ Capital Management, LLC, and not in its
individual capacity
By: /s/ Andrew B. Lord
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Name: Andrew B. Lord
Title: Assistant Secretary
"HOLDERS' AGENT"
DDJ Capital Management, LLC, in its capacity as Agent for the
Purchasers and the other holders from time to time of Senior
Discount Notes
By: /s/ David J. Breazzano
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Name: David J. Breazzano
Title: Member
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