EXHIBIT 10.35
AMENDMENT NO. 1 TO
SECURITIES REPURCHASE AGREEMENT
This Amendment No. 1 to Securities Repurchase Agreement (this "AMENDMENT") is
made and entered into as of the 26th day of February, 2007 by and among
Reclamation Consulting and Applications, Inc. ("COMPANY"), and AJW Partners,
LLC, AJW Qualified Partners, LLC, AJW Offshore, Ltd. and New Millennium Partners
II, LLC (collectively, the " SELLERS"). The Company and the Sellers are
sometimes referred to herein individually as a "PARTY" and collectively as the
"PARTIES". Capitalized terms used but not defined herein have the meanings
assigned to them in the Securities Repurchase Agreement dated as of February 1,
2007 (the "AGREEMENT").
WHEREAS, on February 1, 2007, the Parties entered into the Agreement to
repurchase from the Sellers, the Note and Warrants; and
WHEREAS, the Parties wish to amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties agree as follows:
I. AMENDMENTS TO THE AGREEMENT
A. Sections 1.3 and 1.4 of the Agreement are hereby deleted in their
entirety and replaced with the following sentence:
1.3 CONSIDERATION AND PAYMENT FOR THE NOTES AND WARRANTS. In
consideration for the Notes, the Company shall (i) pay each Seller
an amount equal to the outstanding balance of principal and, accrued
interest as of the Note Closing on such Seller's respective Note
plus a prepayment penalty equal to thirty percent (30%) of such
outstanding balance which the Parties agree shall, as of April 30,
2007, be in the amounts set forth in EXHIBIT B, attached hereto (the
"NOTE CASH PRICES"), and (ii) issue to the Sellers three million,
two hundred fifty thousand (3,250,000) shares of the Company's
restricted common stock as set forth in EXHIBIT D, attached hereto
(the "COMPANY SHARES") (collectively, the Note Cash Prices and the
Company Shares shall constitute the "NOTE PURCHASE PRICES"). In
consideration for the Warrants, the Company shall pay to each Seller
the respective amount set forth in Exhibit C attached hereto (the
"WARRANT PURCHASE PRICES"). On or before April 30, 2007, the Company
shall deliver (i) the Note Purchase Prices to the Sellers by payment
of the Note Cash Prices and by delivering stock certificates to the
Sellers evidencing their respective ownership of the Company Shares;
and (ii) the Warrant Purchase Prices to Sellers. In the event the
Company fails to deliver the Note Purchase Prices and the Warrant
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Purchase Prices to the Sellers by April 30, 2007, this Agreement
shall be deemed null and void, with no binding obligation on the
part of either Party with respect to the sale of the Notes or the
Warrants. In the event the Company delivers the Note Purchase Prices
to the Sellers by April 30, 2007 but fails to deliver the Warrant
Purchase Prices, the provisions of this Agreement relating to the
sale of the Warrants shall be deemed null and void, with no binding
obligation on the part of either Party with respect to the sale of
the Warrants.
1.4 INITIAL PURCHASE DOCUMENTS. As of the Effective Date, provided
that the Company makes the payments detailed in EXHIBIT E attached
hereto (the "MONTHLY NOTE PAYMENTS") and does not otherwise breach
any material terms of this Agreement, (i) the Sellers shall have no
further rights under the Initial Purchase Documents, (ii) the
Company shall have no further obligations under the Initial Purchase
Documents, and (iii) Xxxxxx Xxxxxx shall have no further obligations
or responsibilities under the Guaranty and Pledge Agreement dated
June 23, 2005 and any amendments thereto. In the event, the Company
fails to make the Monthly Note Payments or breaches any material
terms of this Agreement (including any failure to pay the Note
Purchase Prices or Warrant Purchase Prices by April 30, 2007) as
required hereby, the Initial Purchase Documents shall continue in
full force and effect.
B. EXHIBIT B and EXHIBIT E to the Agreement are hereby deleted in their
entirety and replaced with EXHIBIT B and EXHIBIT E to this Amendment.
II. GENERAL PROVISIONS
A. Each Party shall pay the fees and expenses of its advisors, counsel,
accountants and other experts, if any, and all other expenses, incurred by such
party incident to the negotiation, preparation, execution, delivery and
performance of this Amendment.
B. Except as expressly amended by this Amendment, the Parties agree
that all other provisions of the Agreement remain unchanged and that the
Agreement remain in full force and effect.
C. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the date first written hereinabove.
THE COMPANY:
RECLAMATION CONSULTING AND APPLICATIONS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Xxxxxx Xxxxxx
President
THE SELLERS:
AJW PARTNERS, LLC
By: SMS Group, LLC
Manager
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
Manager
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
Manager
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
Manager
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxx
Manager
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EXHIBIT B
NOTE CASH PRICES AS OF APRIL 30, 2007
Outstanding Balance of Accrued
Interest and Principal on Prepayment Penalties Note Purchase
Notes calculated as of calculated as of Prices as of
April 30, 2007 April 30, 2007 April 30, 2007
AJW Partners LLC $107,998 $32,399 $140,397
AJW Offshore, Ltd. $375,743 $112,723 $488,466
AJW Qualified Partners, LLC $253,495 $76,049 $329,544
New Millennium Capital
Partners II, LLC $12,750 $3,825 $16,575
Total $749,986 $224,996 $974,982
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EXHIBIT E
MONTHLY NOTE PAYMENTS
Following the execution of this Agreement, the Company shall pay each Seller the
respective amounts set forth in the table below, provided that the obligation to
make such payments shall terminate on delivery of the Purchase Price to Sellers
pursuant to Section 1.4 of the Agreement:
------------------------- ------------- ------------ ------------- -------------
TOTAL PER
DUE FEBRUARY 1, 2007 PRINCIPAL INTEREST PENALTY SELLER
------------------------- ------------- ------------ ------------- -------------
AJW PARTNERS $8,000 $1,121.08 $146.66 $9,267.74
------------------------- ------------- ------------ ------------- -------------
AJW OFFSHORE $27,833.33 $3,900.42 $510.27 $32,244.02
------------------------- ------------- ------------ ------------- -------------
AJW QUALIFIED $18,777.78 $2,631.42 $344.25 $21,753.45
------------------------- ------------- ------------ ------------- -------------
NEW MILLENNIUM $944.44 $132.35 $17.31 $1,094.10
------------------------- ------------- ------------ ------------- -------------
TOTAL $55,555.55 $7,785.27 $1,018.49 $64,359.31
------------------------- ------------- ------------ ------------- -------------
------------------------- ------------- ------------ ------------- -------------
TOTAL PER
DUE FEBRUARY 28, 2007 PRINCIPAL INTEREST PENALTY SELLER
------------------------- ------------- ------------ ------------- -------------
AJW PARTNERS $8,000 $951.22 $137.78 $9,089
------------------------- ------------- ------------ ------------- -------------
AJW OFFSHORE $27,833.33 $3,309.44 $479.34 $3,162.11
------------------------- ------------- ------------ ------------- -------------
AJW QUALIFIED $18,777.78 $2,232.72 $323.39 $21,333.89
------------------------- ------------- ------------ ------------- -------------
NEW MILLENNIUM $944.44 $112.30 $16.27 $1,073.01
------------------------- ------------- ------------ ------------- -------------
TOTAL $55,555.55 $6,605.68 $956.78 $63,118.01
------------------------- ------------- ------------ ------------- -------------
------------------------- ------------- ------------ ------------- -------------
TOTAL PER
DUE MARCH 31, 2007 PRINCIPAL INTEREST PENALTY SELLER
------------------------- ------------- ------------ ------------- -------------
AJW PARTNERS $8,000 $985.19 $128.89 $9114.08
------------------------- ------------- ------------ ------------- -------------
AJW OFFSHORE $27,833.33 $3,427.63 $448.42 $31,709.38
------------------------- ------------- ------------ ------------- -------------
AJW QUALIFIED $18,777.78 $2,312.45 $302.53 $21,392.76
------------------------- ------------- ------------ ------------- -------------
NEW MILLENNIUM $944.44 $116.31 $15.22 $1,075.97
------------------------- ------------- ------------ ------------- -------------
TOTAL $55,555.55 $6,841.58 $895.06 $63,292.19
------------------------- ------------- ------------ ------------- -------------
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