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EXHIBIT 10.49
THIRD AMENDMENT TO SECOND AMENDED
AND RESTATED CERTIFICATE AND
AGREEMENT OF LIMITED PARTNERSHIP
OF FTI LIMITED PARTNERSHIP
This Third Amendment to the Second Amended and Restated Certificate and
Agreement of Limited Partnership of FTI Limited Partnership (the "Third
Amendment") dated as of January 23, 1997, is entered into by and between KTI
Management of Maine, Inc., a Maine corporation ("KMM") and Maine Woodchips
Associates, a Maine partnership ("Woodchips"), witnesseth that:
Whereas, Woodchips wishes to sell its 25% interest as a limited partner
in FTI Limited Partnership, a Maine limited partnership ("FTI");
Whereas, KMM wishes to purchase such 25% interest as a limited partner
in FTI;
Now therefore, it is hereby agreed as follows:
1. Woodchips hereby sells, assigns and transfers all of its
right, title, interest and obligations in and to FTI to KMM. KMM hereby
purchases all of Woodchips' right, title, interest and obligations in
and to FTI from Woodchips.
2. Purchase Price:
(a) KMM shall deliver 10,000 shares of KTI, Inc. common stock
and a warrant to purchase 2,000 shares of KTI, Inc. common stock at a
price of $8.50 per share. The warrant will expire three years after the
date of closing. The stock certificate evidencing such shares and the
warrant shall bear customary restrictive legends indicating that such
shares, the warrant and the shares underlying the warrant are
unregistered.
(b) KTI, Inc. and Woodchips shall have executed and exchanged
duplicate originals of a Registration Rights Agreement with each other.
The Registration Rights Agreement shall be in the form of Exhibit I
hereto.
3. Woodchips hereby represents and warrants to KMM that:
(a) it has all requisite power and authority to sell the 25%
interest as a limited partner in FTI that it owns. This Third Amendment
is, and when executed and delivered, will be, the legal, valid and
binding obligation of Woodchips, enforceable in accordance with its
terms.
(b) The execution and delivery of this Third Amendment by
Woodchips and the consummation of the transactions contemplated hereby
will not violate any statute or law or any judgment, decree, order,
regulation or rule of any domestic or foreign court or governmental
authority applicable to Woodchips.
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(c) No person has been authorized by Woodchips, or by anyone
acting on its behalf, to act as a broker, finder or in any other
similar capacity in connection with the transactions contemplated by
this Third Amendment.
(d) Woodchips has no present intention to sell any of the
shares of KTI common stock to be delivered upon execution of this Third
Amendment. Woodchips further agrees that it will not sell the shares so
received, except in compliance with the securities laws of the United
States of America or any state thereof, or any exemption thereto.
(e) No representation or warranty made by Woodchips in this
Third Amendment nor any statement, certificate or other document
attached as an exhibit hereto, nor any other document delivered by
Woodchips to KMM or any of its representatives in connection with this
Third Amendment, is false or misleading in any material respect or
contains any material misstatement of fact or omits to state any fact
necessary to be stated make the statements made in any such
representation or warranty false or misleading in any material respect.
4. KMM represents and warrants to Woodchips as follows:
(a) KMM is a corporation duly formed, validly existing and in
good standing under the laws of the State of Maine and has all
requisite power and authority to carry on its business as it is now
being conducted and to own, lease and operate its properties and assets
as and in the places where such business is now conducted and where
such properties and assets are now owned, leased or operated.
(b) KMM has all requisite power and authority to execute,
deliver and perform its obligations under this Third Amendment. This
Third Amendment is valid and binding upon KMM, enforceable in
accordance with its terms.
(c) Neither the execution and delivery of this Amendment by
KMM nor the consummation of the transactions contemplated hereby by KMM
will violate any provisions of the Certificate of Incorporation of KMM,
or be in conflict with, or constitute a default (or an event which,
with or without notice, lapse of time or both, would constitute a
default) under, or result in the termination or invalidity of, or
accelerate the performance required by, or cause the acceleration of
the maturity of any debt or obligation pursuant to, any agreement or
commitment to which KMM is a party or by which KMM is bound, or violate
any statute or law or any judgment, decree, order, regulation or rule
of any court or governmental authority.
5. Woodchips' assignment of its rights, title, interest and obligations
as a limited partner in FTI is hereby approved and agreed to in all
respects.
6. All references to Woodchips in the Agreement, as amended, shall be
deemed to refer to KMM.
7. The limited partnership interest of Woodchips shall be deemed to
have been converted to a general partnership interest in FTI upon
execution and delivery of this Third Amendment.
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In witness whereof, the parties have executed this Third Amendment to
the Second Amended and Restated Certificate and Agreement of Limited Partnership
of FTI Limited Partnership as of the day and date first written above.
KTI Management of Maine, Inc. Maine Woodchips Associates
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Its Chairman and Chief Its Partner
Executive Officer
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County of Xxxxxx )
)ss.
State of New Jersey )
On the 27th day of January, 1997, before me, the undersigned Notary
Public, personally appeared Xxxxxxxx Xxxxxxx, Xx., the Chairman of the Board of
Directors and Chief Executive Officer of KTI Management of Maine, Inc.., known
to me to be the person whose name is subscribed to the within instrument, who,
being duly sworn, declared that the foregoing is true, that the execution hereof
was his free act and deed and the free act and deed of the said corporation and
that the execution hereof was made for the purposes herein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
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)
)ss.
)
On the day of January 1997, before me, the undersigned Notary Public,
personally appeared , a partner of Maine Woodchips Associates, known to me to
be the person whose name is subscribed to the within
instrument, who, being duly sworn, is declared that the foregoing is true, that
the execution hereof was h__ free act and deed and the free act and deed of the
said entity and that the execution hereof was made for the purposes herein
contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
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Notary Public
My commission expires:
