AMENDMENT NO. 3 TO LOAN AND SECURITY AGREEMENT
XXXXX INDUSTRIES, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
August 28, 1997
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender") and Xxxxx Industries, Inc.
("Borrower") have entered into certain financing arrangements pursuant to the
Loan and Security Agreement, dated as of August 4, 1993, between Lender and
Borrower, as amended pursuant to Amendment No. 1 to Loan and Security
Agreement, dated January 31, 1996 and Amendment No. 2 to Loan and Security
Agreement, dated July 3, 1996 (as amended hereby and as the same may be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement," and together with all agreements, documents
and instruments at any time executed and/or delivered in connection therewith
or related thereto, collectively, the "Financing Agreements").
Borrower has requested that Lender agree to certain amendments to the
Loan Agreement and Lender is willing to agree to such amendments to the Loan
Agreement, subject to the terms and conditions contained herein. By this
Amendment, Lender and Borrower desire and intend to evidence such amendments.
In consideration of the foregoing, and other good and valuable
consideration, and the respective agreements and covenants contained herein,
the parties hereto agree as follows:
1. DEFINITIONS. For purpose of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals hereto, shall have the respective
meanings assigned thereto in the Loan Agreement.
2. TRANSACTIONS WITH AFFILIATES. The proviso to Section 6.6(b) of the
Loan Agreement is hereby amended by deleting the reference to "April 30,
1993" contained therein and substituting the following therefore: "July 3,
1996."
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the other financing Agreements,
Borrower hereby represents, warrants and covenants with and to Lender as
follows (which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof and shall be incorporated
into and made a part of the Financing Agreements):
(a) No event of Default exists on the date of this Amendment
(after giving effect to the amendments to the Loan Agreement made by this
Amendment).
(b) This Amendment has been duly executed and delivered by
Borrower and is in full force and effect as of the date hereof, and the
agreements and obligations of Borrower contained herein constitute legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
4. CONDITIONS PRECEDENT. The effectiveness of the other terms and
conditions contained herein shall be subject to the receipt by Lender of an
original of this Amendment, duly authorized, executed and delivered by
Borrower.
5. EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto, no
other changes or modifications to the Loan Agreement or the other Financing
Agreements are intended or implied and the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other financing Agreements, the terms of this Amendment
shall control.
6. GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in
accordance with the laws of the State of New York.
7. BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one
and the same agreement. In making proof of this Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed
by each of the parties hereto.
9. FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional
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action as may be necessary or desirable to effectuate the provisions and
purposes of this Amendment.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender, shall
become a binding agreement between Borrower and Lender.
Very truly yours,
XXXXX INDUSTRIES, IN.
By: /s/ Xxxxx X. Xxx
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Title: Vice President
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AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Title: 1st Vice President
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