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EXHIBIT 10.31
EXECUTION COPY
FIFTH AMENDMENT made as of October 30, 1996 (the "Amendment") to
FORBEARANCE AGREEMENT made as of June 7, 1996, as amended by the First
Amendment thereto, dated as of June 28, 1996 (the "First Amendment"), the
Second Amendment thereto, dated as of August 13, 1996 (the "Second Amendment"),
the Third Amendment thereto, dated as of September 3, 1996 (the "Third
Amendment") and the Fourth Amendment thereto, dated as of September 27, 1996
(the "Fourth Amendment") (as so amended and as amended through the date hereof,
the "Forbearance Agreement") among XXXXX TECHNOLOGY CORPORATION, BCM ENGINEERS
INC., a Pennsylvania corporation, BCM ENGINEERS INC., an Alabama corporation,
XXXXXX ENVIRONMENTAL SERVICES INC., each of the Lenders which are parties to
the Loan Agreement, and CHEMICAL BANK, as Agent for the Lenders. Terms which
are capitalized herein and not otherwise defined shall have the meanings
ascribed to them in the Forbearance Agreement.
WHEREAS, pursuant to the Fourth Amendment, the Current Forbearance
Period automatically terminates on October 31, 1996; and
WHEREAS, the Borrowers have requested the Lenders to consider
extending the Current Forbearance Period to November 29, 1996 and the Lenders
have so agreed, on the terms and subject to the fulfillment of the conditions
contained in this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. EXTENSION OF CURRENT FORBEARANCE PERIOD. The Current Forbearance
Period is hereby extended to November 29, 1996. Accordingly, the First
Amendment is hereby modified by deleting the third sentence of Section 2
thereof and by substituting the following in lieu thereof:
"However, for the period commencing on the date hereof and
terminating on November 29, 1996 (the "Current Forbearance
Period"), so long as none of the events described in the
following clauses (a), (b) or (c) shall have occurred during
the Current Forbearance Period, the Lenders shall not demand
payment of the Liabilities, nor shall the Lenders otherwise
seek to exercise any of their rights or remedies under the
Loan Agreement, any of the Other Agreements or applicable law
with respect to the Designated Default (and the Forbearance
Agreement is hereby amended to so provide): (a) any Event of
Default (other than the Designated Default) shall have
occurred or other event which, with the giving of notice or
passage of time would constitute an Event of Default shall
have arisen, (b) the Xxxxx Award shall have been paid by any
Borrower in whole or in part or shall have been entered as a
judgment in any court of competent jurisdiction and the
enforcement of such judgment shall not have been
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stayed or (c) any default by any Borrower in the performance of
the terms of this Agreement shall have occurred."
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. This
Amendment shall not be effective unless and until each of the following
conditions shall have been satisfied in the sole discretion of the Lenders or
waived by the Lenders, for whose sole benefit such conditions exist:
(a) The Agent and each of the Lenders shall have
received a fully executed counterpart or original of this Amendment.
(b) Upon the effectiveness of this Amendment, all
representations and warranties set forth in the Loan Agreement shall be true and
correct in all material respects on and as of the effective date hereof, except
for (x) such inducing representations and warranties that were only required to
be true and correct as of a prior date, (y) such representations and warranties
as relate to the defaults described in clause (ii) hereof and (z) such
representations and warranties as relate to the occurrence of an event which has
had or is reasonably likely to have a Material Adverse Effect, but only to the
extent that such event constitutes the Xxxxx Event, and no Default or Event of
Default shall have occurred and be continuing, other than (i) the Designated
Default and (ii) defaults under agreements made in the ordinary course of
business between or among any of the Borrowers and Persons other than the Agent,
the Lenders, or any Affiliate of the Borrowers, such as lease agreements, none
of which agreements is material to the business of such Borrower and none of
which defaults, singly or in the aggregate, has had or is reasonably likely to
have, a Material Adverse Effect.
(c) Except for the collectibility of the Referenced
Account and the occurrence of the Xxxxx Event, no event or development shall
have occurred since the date of delivery to the Lenders of the Borrowers' most
recent financial statements which event or development has had or is reasonably
likely to have a Material Adverse Effect.
(d) All corporate and legal proceedings and all
documents and instruments executed or delivered in connection with this
Amendment shall be satisfactory in form and substance satisfactory to the
Lenders and their counsel, and the Lenders and their counsel shall have
received all information and copies of all documents which the Lenders and
their counsel may have requested in connection herewith and the matters
contemplated hereunder, such documents, when requested by them, to be certified
by appropriate corporate authorities.
(e) The Lender shall have received such further
agreements, consents, instruments and documents as may be necessary or proper
in the reasonable opinion of the Lenders, the Agent and their counsel to carry
out the provisions and purposes of this Amendment.
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SECTION 3. GENERAL PROVISIONS.
(a) Nothing contained in this Amendment shall be
deemed to be a waiver of any Defaults or Events of Default, whether or not the
Agent or any of the Lenders shall have any knowledge thereof, nor shall
anything contained in this Amendment be deemed to be a waiver of any future
Default or Event of Default whatsoever.
(b) Except as herein expressly amended, the
Forbearance Agreement, the First Amendment thereto, the Second Amendment
thereto, the Third Amendment thereto, the Fourth Amendment thereto and the Loan
Agreement and all other agreements, documents, instruments and certificates
executed in connection therewith, are ratified and confirmed in all respects
and shall remain in full force and effect in accordance with their respective
terms.
(c) All references in any document or agreement to
the Forbearance Agreement shall mean the Forbearance Agreement as amended as of
the effective date hereof.
(d) This Amendment may be executed by the parties
hereto individually or in combination, in one or more counterparts, each of
which shall be an original and all which shall constitute one and the same
agreement.
(e) The Third Amendment, Waiver and Consent dated
as of May 15, 1996 is hereby modified by deleting the date "October 31, 1996"
set forth in Section (7a) thereof and by substituting in lieu thereof the date
"November 29, 1996".
(f) This Amendment shall be governed and controlled
by the laws of the State of New York without reference to its choice of law
principles.
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IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the
Lenders and the Agent have caused this Amendment to be duly executed by their
respective officers thereunto duly authorized as of the day and year first
above written.
XXXXX TECHNOLOGY XXXXXX ENVIRONMENTAL SERVICES INC.
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------- ------------------------------
(Title) Vice-Pres. (Title) Vice-Pres.
BCM ENGINEERS INC., CHEMICAL BANK, as a Lender and as
a Pennsylvania corporation Agent
By: /s/ Xxxxxxx X. Xxxxxxxx By:
---------------------------- ------------------------------
(Title) Vice-Pres. (Title)
BCM ENGINEERS INC., BTM CAPITAL CORPORATION, formerly
Alabama Corporation formerly known as BOT Financial
Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By:
---------------------------- ------------------------------
(Title) Vice-Pres. (Title)
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IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the Lenders and
the Agent have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
XXXXX ENVIRONMENTAL TECHNOLOGIES XXXXXX ENVIRONMENTAL SERVICES, INC.
CORPORATION
By: ____________________________ By: ______________________________
(Title) (Title)
BCM ENGINEERS, INC., CHEMICAL BANK, as a Lender and as
a Pennsylvania corporation Agent
By: ____________________________ By: X.X. Xxxx
(Title) ______________________________
(Title) Vice President
BCM ENGINEERS, INC., BTM CAPITAL CORPORATION, former
Alabama corporation known as BOT Financial Corporation
By: ____________________________ By: ______________________________
(Title) (Title)
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IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the Lenders and
the Agent have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
XXXXX ENVIRONMENTAL TECHNOLOGIES XXXXXX ENVIRONMENTAL SERVICES INC.
CORPORATION
By: ____________________________ By: ______________________________
(Title) (Title)
BCM ENGINEERS INC., CHEMICAL BANK, as a Lender and as
a Pennsylvania corporation Agent
By: ____________________________ By: ______________________________
(Title) (Title)
BCM ENGINEERS INC., BTM CAPITAL CORPORATION, formerly
Alabama corporation known as BOT Financial Corporation
By: ____________________________ By: /s/ Xxxxxxx X. Xxxx Xx.
(Title) ------------------------------
(Title) Senior Vice President
