Exhibit 10.34
AMENDMENT NO. 1 TO THE
SUBORDINATION AND INTERCREDITOR AGREEMENT
AMENDMENT NO. 1, dated as of December 18, 2003 (the "Amendment"), to
the SUBORDINATION AND INTERCREDITOR AGREEMENT (the "Agreement"), dated as of
August 13, 2003, by and among Neurologix, Inc., a Delaware corporation (the
"Borrower"), Change Technology Partners, Inc., a Delaware corporation (the
"Senior Lender"), Palisade Private Partnership, L.P., Dr. Martin J. Kaplitt and
Clark A. Johnson (the "Subordinated Lenders").
WHEREAS, the Senior Lender, CTP/N Merger Corp. and the Borrower are
parties to that certain Agreement and Plan of Merger, dated August 13, 2003 (the
"Merger Agreement");
WHEREAS, in connection with the Merger Agreement, the Borrower
issued a Senior Secured Promissory Note, dated as of August 13, 2003, in the
aggregate principal amount of $750,000, in favor of the Senior Lender (the
"Original Note");
WHEREAS, the Borrower, the Senior Lender and CTP/N Merger Corp. are
parties to that certain Amendment No. 1 to Agreement and Plan of Merger, dated
as of November 14, 2003 (the "Merger Agreement Amendment");
WHEREAS, in connection with the Merger Agreement Amendment, the
Borrower has issued an Amended and Restated Senior Secured Promissory Note, in
the aggregate principal amount of $1,100,000, dated the date hereof, in favor of
the Senior Lender (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "New Note"); and
WHEREAS, the New Note contemplates the execution of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. All capitalized terms used herein but not otherwise defined herein
shall have the meanings given to them in the Agreement.
2. The first three WHEREAS clauses of the Agreement are hereby amended and
restated in their entirety to read as follows:
"WHEREAS, the Senior Lender, CTP/N Merger Corp. and the Borrower are
parties to that certain Agreement and Plan of Merger, dated August 13, 2003 (as
amended, amended and restated, supplemented or otherwise modified from time to
time, the "Merger Agreement");
2
WHEREAS, in connection with the Merger Agreement, the Borrower has
issued an Amended and Restated Senior Secured Promissory Note, in the aggregate
principal amount of $1,100,000, dated as of the date of Amendment No. 1 to this
Agreement, in favor of the Senior Lender (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Note");
WHEREAS, the obligations of the Borrower under the Note will be
secured by all of the assets of the Borrower (all such collateral is hereinafter
referred to as the "Senior Collateral") pursuant to the Security Agreement,
dated as of August 13, 2003, by and between the Borrower and the Secured Lender
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "Security Agreement");"
3. Each of the Subordinated Lenders hereby represents, warrants and agrees
that:
a. The representations and warranties made by such Subordinated
Lender in the Agreement are true and correct as of the date hereof as though
made on and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date).
b. The execution, delivery and performance of this Amendment and the
Agreement, as amended hereby, are within such Subordinated Lender's powers,
corporate or otherwise, have been duly authorized by all required action and do
not and will not contravene any law or any agreement or undertaking to which
such Subordinated Lender is a party or by which such Subordinated Lender may in
any way be bound or its certificate of incorporation or by-laws.
4. This Amendment is in no way intended to constitute a novation of the
obligations of the Borrower or the Subordinated Lenders under the Agreement, and
the Borrower and each of the Subordinated Lenders hereby reaffirm all of their
respective obligations under the Agreement, as amended.
5. Except as otherwise expressly provided herein, the Agreement is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects except that on and after the date hereof all
references in the Agreement to "this Agreement", "hereto" "hereof" "hereunder"
or words of like import referring to the Agreement shall mean the Agreement as
amended by this Amendment.
6. This Amendment shall be governed by, and construed in accordance with,
the internal laws of the State of New York without regard to the principles of
conflicts of laws thereof.
7. This agreement may be executed in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
3
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Subordination and Intercreditor Agreement on the day and year first above
written.
NEUROLOGIX, INC.
/s/ Mark S. Hoffman
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Name:
Title:
CHANGE TECHNOLOGY PARTNERS, INC.
/s/ Michael Gleason
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Name: Michael Gleason
Title: Chairman and Chief Executive
Officer
PALISADE PRIVATE PARTNERSHIP, L.P.
BY: PALISADE PRIVATE HOLDINGS, LLC,
General Partner
/s/ Mark Hoffman
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Name: Mark Hoffman
Title: Member
/s/ Martin J. Kaplitt
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DR. MARTIN J. KAPLITT
/s/ Clark A. Johnson
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CLARK A. JOHNSON