EXHIBIT 10(jj)
RENEGOTIATION AND PAYMENT AGREEMENT
THIS RENEGOTIATION AND PAYMENT AGREEMENT (the "Agreement") dated as
of February 28, 1997 is entered into by and between SANWA BUSINESS CREDIT
CORPORATION, a Delaware corporation ("SBCC") and B-41 ASSOCIATES, L.P., a
Delaware limited partnership ("B-41"):
R E C I T A L S:
A. SBCC and B-41 entered into a Note Purchase Agreement dated as of
July 27, 1994, together with a number of security and other agreements which
were entered into and delivered as of July 27, 1994.
B. SBCC and B-41 have renegotiated the terms and conditions of the
Note Purchase Agreement to the end that the long term contingent payment to
be made by B-41 to SBCC thereunder has been converted to a sum certain to be
paid by B-41 promptly.
C. SBCC and B-41 are desirous of effecting final payment of all
obligations of B-41 to SBCC and the termination of all existing contractual
and business relationships between them and with respect to any entities
affiliated with B-41.
NOW THEREFORE, in consideration of the premises and of the terms
and covenants herein contained, the parties hereto covenant and agree as
follows:
1. In consideration of the agreement of B-41 to make the payment
contemporaneously with the execution of this Agreement, B-41 and SBCC agree
that the remaining purchase price payable pursuant to Section 4 of the Note
Purchase Agreement shall be fixed at $2,750,000.
2. Annexed hereto as Exhibit B is the wire transfer payment
instruction from SBCC.
3. Immediately upon the timely initiation of the wire transfer of
the renegotiated purchase price, (i) the Note Purchase Agreement and all
exhibits, documents and agreements executed in connection therewith shall be
terminated and of no further force or effect; and (ii) the following
documents (the forms of each of which are annexed hereto), duly executed and
acknowledged shall be delivered to the appropriate party:
(a) Releases (i) SBCC to B-41 et al.
(Exhibit A-1); (ii) B-41 to SBCC
(Exhibit A-2); (iii) York-Cogen
Partners, L.P. to SBCC (Exhibit A-3);
(iv) B-41 Management Corp. to SBCC
(Exhibit A-4); (v) York Research
Corporation to SBCC (Exhibit A-5).
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(b) Termination statements executed by SBCC
for (1) financing statement filed with
the New York Secretary of State as
document number 186087; (2) financing
statement with New York County
as document number 94PN41825; (3)
financing statement filed with the
Delaware Secretary of State as document
number 9412540; and (4) financing
statement filed with Kent County,
Delaware as document number 0003974.
(c) Termination of Collateral Assignment and
Security Agreement (Exhibit B).
(d) Termination of Agency Agreement (Exhibit
C).
(e) Termination of Proxy and Agreement
(Exhibit D).
(f) Revocation of Payment Instruction
(Exhibit E).
(g) Termination of Notice Agreement (Exhibit
F).
(h) Termination of Consent and Subordination
Agreement (Exhibit G).
(i) Termination of Pledge Agreement (Exhibit
H).
4. SBCC and B-41 agree from time to time after the execution of
this Agreement, to execute, acknowledge and deliver such other instruments,
documents or other materials as are reasonably requested by either of them to
further effectuate the consummation of the transactions contemplated hereby
and, in particular, to effectuate the release of record of the security
interests held by SBCC with respect to assets of B-41 and its affiliated
entities and the termination of the contractual arrangements with
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other parties previously entered into with respect to the Note Purchase
Agreement.
5. The Agreement and all documents delivered in connection
herewith constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings between the parties hereto relating to the subject matter
hereof.
6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
EXECUTED IN THE STATE OF NEW YORK BY RESIDENTS THEREOF AND TO BE PERFORMED IN
SUCH STATE.
7. Each party hereto waives any right it may have to a trial by
jury in any action to enforce or defend any matter arising from or related to
this Agreement.
8. This Agreement inures to the benefit of B-41 and SBCC, their
respective successors and permitted assigns, and is binding upon B-41 and
SBCC and their respective successors and permitted assigns.
9. If any one or more of the provisions of this Agreement, or any
agreement or document executed in connection herewith, are held to be
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision or provisions in
every other
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respect and of the remaining provisions of this Agreement, and
any document or agreement executed in connection herewith, shall not be in
any way impaired. In the event of a finding of such invalidity, illegality
or unenforceability by a court of competent jurisdiction, the parties hereto
express that it is their intention and desire that such court modify such
provision to the minimum extent necessary to avoid such invalidity,
illegality or unenforceability (provided such modification does not alter the
purpose or intent of such provision).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
B-41 ASSOCIATES, L.P.
By: B-41 Management Corp.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Vice President
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