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Exhibit 10.35
SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT is entered into this 26th day of June, 1997 by and
between Xxxxxxx International, Ltd., whose principal place of business is 0
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx (the "Debtor"), and Bank of Boston
Connecticut, a Connecticut savings bank having an address and place of business
at 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000 (the "Bank").
W I T N E S S E T H:
WHEREAS, Debtor and Bank entered into a Revolving Loan and Security
Agreement as of the 31st day of May, 1996, which was amended by Amendment
Agreement dated as of the 17th day of March, 1997 (collectively, the "Loan
Agreement"); and
WHEREAS, Debtor and Bank desire to extend the termination dates of the
Revolving Loans under Facility A and Facility B referred to in the Loan
Agreement from January 10, 1998 to July 31, 1998 and to amend the Loan
Agreement to reflect certain amendments by Bank and the Guarantor to the Pledge
Agreement referred to in the Loan Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency are hereby acknowledged, the parties hereto agree as follows:
1. LOAN AGREEMENT.
(a) Section 1 of the Loan Agreement is amended:
(1) By deleting the reference to "January 10, 1998" in the first
sentence of subsection (h) and substituting "July 31, 1998" therefor as the
termination date of the Revolving Loans under Facility A and Facility B.
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(2) By deleting subsection (i)(i) thereof in its entirety and inserting
the following in its place and stead:
"(i) "Maximum Amount of Facility A" shall mean the lesser of the amount of
(A) One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) and (B) the
Eligible Collateral Value."
(3) By deleting subsection (i)(ii) thereof in its entirety and inserting
the following in its place and stead:
"(ii) "Eligible Collateral" shall mean the collected funds of bank account
#154681816 and all municipal bonds rated BAA or higher by Standard & Poors
contained in custody account #____________, specifically pledged by Xxxxxx X.
Xxxxxx to Secured Party pursuant to a Pledge Agreement dated as of May 31, 1996
as amended by Amendment to Pledge Agreement dated July 24, 1996 and as further
amended by an Amended and Restated Pledge Agreement dated June , 1997, in
which Bank has a perfected, first-priority security interest. "Eligible
Collateral Value" shall mean the aggregate of (i) 100% of the value of all
Eligible Collateral constituting collected funds in bank account #154681816 and
(ii) 85% of the fair market value, as determined by Bank in its commercially
reasonable judgment, of all Eligible Collateral constituting municipal bonds
rated BAA or higher by Standard & Poors, in custody account #___________. The
pledge of Xxxxxx X. Xxxxxx shall be evidenced by a pledge agreement
substantially in the form of Exhibit D attached hereto (the"Pledge Agreement")."
(b) Section 4 and Section 14 of the Loan Agreement are amended by
deleting the references to "Cash Collateral" therein and substituting
"Eligible Collateral" therefor.
(c) Exhibit A-1 of the Loan Agreement is amended by adding a copy of
the an Allonge annexed hereto as Exhibit A, as part of the $500,000 Revolving
Loan Note attached as Exhibit A-1 of the Loan Agreement.
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(d) Exhibit A-2 of the Loan Agreement is amended by adding a copy of
the Allonge annexed hereto as Exhibit B, as part of the $1,750,000 Revolving
Loan Note attached as Exhibit A-2 of the Loan Agreement.
(e) Exhibit D of the Loan Agreement is amended by substituting a
copy of the Amended and Restated Pledge Agreement annexed hereto as Exhibit C
in place of the existing Pledge Agreement attached as Exhibit D of the Loan
Agreement.
2. OTHER DOCUMENTS. On the date hereof, Debtor shall, in addition to
this Second Amendment deliver the following fully executed documents to Bank:
(a) Allonge to $500,000 Revolving Loan Note in the form of Exhibit A
attached hereto;
(b) Allonge to $1,750,000 Revolving Loan Note in the form of Exhibit
B attached hereto;
(c) Fully executed Amended and Restated Pledge Agreement in the form
of Exhibit C attached hereto;
(d) Corporate resolutions of Debtor authorizing the execution and
delivery of the amendment documents;
(e) Affidavit Regarding Taxes in the form of Exhibit D attached
hereto; and
(f) Opinion of Counsel in the form of Exhibit E attached hereto.
3. RIGHTS, REMEDIES. Except as otherwise expressly provided for herein,
nothing in this Second Amendment shall extend to or affect in any way any of
the Debtor's
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Obligations or the Bank's rights and remedies arising under the Financing
Agreements, and the Bank shall not be deemed to have waived any or all of its
rights or remedies with respect to any Event of Default or event or condition
which, with notice or the lapse of time, or both would become an Event of
Default and which upon the Debtor's execution and delivery of this Second
Amendment might otherwise exist or which might hereafter occur.
4. OBLIGATIONS. The rights, privileges, duties and obligations of the
parties under the Financing Agreements shall, except as modified above, remain
unchanged and in full force and effect, and nothing contained herein shall
operate to release the Debtor from its liability to pay the indebtedness under
the Financing Agreements and to keep and perform the other terms, conditions
and obligations and agreements contained therein except as expressly modified
in writing herein. Debtor agrees to pay the indebtedness evidenced and secured
by the Financing Agreements with interest and all other payments required to be
made, in accordance with the provisions of the respective agreements with Bank,
except as herein modified. Debtor represents and warrants that no counterclaim,
right of set off or defense of any kind now exists or is outstanding with
respect to their respective obligations to Bank.
5. GOVERNING LAW. This Second Amendment is intended to take effect
under, and shall be construed according to and governed by, the laws of the
State of Connecticut, without giving effect to its principles of conflicts of
law.
6. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
7. COUNTERPARTS. This Second Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Second Amendment it shall not be necessary
to produce or account for more than one counterpart signed by each party hereto
by and against which enforcement hereof is sought.
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8. SUCCESSORS, ASSIGNS. The modifications and agreements herein
contained are expressly made binding upon and shall inure to the benefit of the
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
on the date first written above.
XXXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxx Xxxxxxx
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VP & Chief Financial Officer
BANK OF BOSTON CONNECTICUT
By: /s/ Xxxxxx X. Xxxxx
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Vice President
Read and agreed to this 26th day
of June, 1997 by Xxxxxx X. Xxxxxx
as Guarantor (as defined in the
Loan Agreement)
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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