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EXHIBIT 10.34
AMENDMENT NO. 3 TO
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
Amendment No. 3, dated as of January ___, 1997 ("Amendment"), by and
between XXXXX TECHNOLOGY CORPORATION (formerly Xxxxx Environmental Technologies
Corporation, and formerly Canonie Environmental Services Corp.), a Delaware
corporation (the "Company"), and 399 VENTURE PARTNERS, INC., a Delaware
corporation ("399"), to the Amended and Restated Note Purchase Agreement dated
November 15, 1995 between the foregoing parties (the "Note Agreement").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to them in the Note Agreement.
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Note Agreement as provided
for herein in connection with the modification of interest payments on the notes
issued under the Note Agreement and Amendment No. 2 to the Note Agreement as
evidenced by amended and restated notes to be issued in placement thereof
pursuant to this Amendment (the "Amended and Restated Notes"), and to make
certain other amendments to the Note Agreement;
NOW, THEREFORE, for and in consideration of the above premises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby expressly acknowledged, the Company and 399 hereby agree as follows:
Section 1. Amendments. The Note Agreement is hereby amended as follows:
(a) Exhibits A and B to the Note Agreement are hereby amended as of the
date hereof by:
(i) Replacing all references therein to Canonie Environmental
Services Corp. or Xxxxx Environmental Technologies Corporation with Xxxxx
Technology Corporation to reflect the name changes by the Company; and
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(ii) Delete the reference contained in Section 1(b)(ii) to "May
21, 1997", and replace same with "May 2, 1998".
(b) Add to Section 4.1 of the Note Agreement the following:
"(g) Settlement Obligations."
Delete the word "and" from paragraph (e) of Section 4.1 of the Note Agreement,
and amend and restate paragraph (f) as follows: "(f) Indebtedness under the EPA
Promissory Note; and".
(c) Add to Section 12.1 in alphabetical order the following
defined term:
""Mutual Pharmaceutical obligations" means all obligations of
the Company and its subsidiaries under that certain settlement
Agreement made as of January 14, 1996 by and among the Company,
BCM, Mutual Pharmaceuticals Company, Inc., among others,
relative to the Company's and BCM's obligations relating to
certain environmental investigation work at a site known as the
Action Arms."
""PRP Obligations" means all obligations of the Company and its
Subsidiaries under that certain settlement entered into as of
December __, 1996 by and among the Company and the parties
identified therein as the "PRP Group" relative to the Company's
obligations relating to certain environmental remediation work
at the site commonly referred to as the "Xxxxx Site" in
Portland, Oregon."
""Settlement Obligations" means the Mutual Pharmaceutical
Obligations and the PRP Obligations."
(d) Amend Section 12.1 of the Note Agreement by restating subparagraph
(v) of the defined term "Permitted Liens" as follows:
"(v) Liens in favor of Indebtedness permitted hereunder (other
than the PRP Obligations), including, without duplication,
Senior Bank Indebtedness; Liens securing the PRP Obligations up
to but not exceeding $2,500,000
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and Liens securing the Mutual Pharmaceutical Obligations;"
Section 2. Conditions to Effectiveness of Amendment. This Amendment
shall become effective on the date (the "Effective Date") on which the
following conditions precedent shall have been satisfied:
2.1 Delivered Documents. On the Effective Date, the Registered Holders
shall have received the following documents, each of which shall be
satisfactory to such holders in form and substance:
(a) This Amendment, executed and delivered by a duly authorized
officer of the Company.
(b) For the account of each Registered Holder replacement Notes
amended as provided for in Section 1 hereof having respective principal
amounts equal to those on each Note outstanding immediately prior to the
effectiveness of this Amendment.
(c) A copy, which shall have been certified by the Secretary or
Assistant Secretary of the Company to be true, complete and correct, of
the resolutions of the Board of Directors of the Company approving this
Amendment and the issuance of the Amended and Restated Notes.
(d) A certificate of the Secretary or an Assistant Secretary of
the Company which shall certify the names of the officers of the Company
authorized to sign this Amendment, the Amended and Restated Notes and the
other documents, instruments or certificates to be delivered pursuant to
this Amendment by the Company or any of its officers, together with the
true signatures of such officers.
(e) The Company shall have taken all corporate and other action,
made any governmental filings and obtained any consents or waivers
necessary to carry out the transactions contemplated hereby and each
shall be in full force and effect on the Effective Date.
2.2 No Default. On the Effective Date the Company shall be in
compliance with all of the terms and provisions set forth in the Note Agreement
on its part to be observed or performed and the representations and warranties
made and restated by the Company pursuant to Section 3 of this Amendment shall
be true and correct on and as of such date with the same force in effect as if
made on and as of such date.
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2.3 Waiver. Any party hereto may, at its sole option, waive any one
or more of the above stated conditions to such party's obligation to close at
or prior to the Effective Date.
Section 3. Representations and Warranties. The Company hereby confirms
and reaffirms the representations and warranties contained in Section 2.1 of
the Note Agreement; provided, however, that the reference to this Agreement and
the Notes shall be deemed to include the Note Agreement and the Notes as
amended and/or restated hereby. 399 hereby confirms and warrants that it
constitutes the Majority of the Holders of Senior Notes and the Majority of the
Holders of Senior Subordinated Notes, as those terms are defined and used in
the Note Agreement, and that it has the authority to enter into, perform and
effect this Amendment on behalf of itself and the holders of the Notes.
Section 4. Limited Effect. Except as expressly amended and modified
by this Amendment, the Note Agreement shall continue to be and shall remain, in
full force and effect in accordance with its terms.
Section 5. Counterparts. This Amendment may be executed by one or
both of the parties hereto on any number of separate counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
Section 6. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the internal laws of the State of New York
without regard to principles of conflicts of law.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
XXXXX TECHNOLOGY CORPORATION
(formerly Xxxxx Environmental
Technologies Corporation and
formerly Canonie Environmental
Services Corp.)
By: E. Xxxxx Xxxxx
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E. Xxxxx Xxxxx
President
399 VENTURE PARTNERS, INC.
By: Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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