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EXHIBIT 10.35
FIRST AMENDMENT TO BORROWER PLEDGE AGREEMENT
This First Amendment to Borrower Pledge Agreement (this
"Amendment") dated as of March 27, 1997, is made and entered into by and
between INTELECT SYSTEMS CORP., a Delaware corporation ("Pledgor"), and ST.
JAMES CAPITAL CORP., a Delaware corporation, ("Secured Party").
W I T N E S S E T H:
WHEREAS, the Pledgor and the Secured Party executed that certain
Floating Rate Promissory Note dated as of February 26, 1997, issued by Pledgor
and Intelect Communications Systems Limited, a corporation organized under the
laws of Bermuda ("ICSL" and together with Pledgor, the "Makers") payable to the
order of Secured Party in the original principal sum of $2,500,000 (the
"Original Note"); and
WHEREAS, as collateral for the indebtedness evidenced by the Original
Note, the Pledgor entered into that certain Borrower Pledge Agreement dated as
of February 26, 1997, in favor of the Secured Party (the "Pledge Agreement"),
wherein the Pledgor granted to the Secured Party a security interest in, inter
alia, 1,100 shares of the common capital stock of DNA Enterprises, Inc., a
Texas corporation and a wholly-owned Subsidiary of Pledgor ("DNA"), evidenced
by Certificate Number 8, and any other shares of the common capital stock of
DNA now owned or hereafter acquired by Pledgor (the "DNA Shares"), and all
proceeds of any and all of the foregoing (as such terms are defined therein);
WHEREAS, contemporaneously herewith, the Pledgor, ICSL and the Secured
Party have entered that certain Amended and Restated Floating Rate Promissory
Note dated as of February 26, 1997, amending and, as so amended, restating the
Original Note to increase the Commitment from $2,500,000 to $5,000,000 (the
"Amended and Restated Note"); and
WHEREAS, in connection with the entering into of the Amended and
Restated Note, the parties hereto wish to effect certain amendments to the
Pledge Agreement;
WHEREAS, it is a condition precedent to the effectiveness of the
Amended and Restated Note that this Amendment be executed and delivered by the
parties hereto; and
WHEREAS, the parties hereto desire to execute and deliver this
Amendment for the reasons described above and to satisfy the condition
precedent referenced in the immediately preceding paragraph.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, and of the representations and warranties herein set forth and for
other good and valuable consideration, the parties hereto do hereby agree as
follows:
SECTION 1. Capitalized terms used herein and not defined herein
which are defined in the Amended and Restated Note shall have the meanings
therein ascribed to them. The term "Note" as used in the Pledge Agreement or
any other documents executed in connection therewith or any other instrument,
document or writing furnished to the Secured Party in connection therewith
shall mean the Amended and Restated Note. From and after the date hereof, all
references in the Amended and Restated Note or in any other Transaction
Document to the Pledge Agreement shall be deemed to be references to the Pledge
Agreement as effected and amended hereby. The term "Obligations" as used in
the Pledge
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Agreement or in any other Transaction Document shall include, without
limitation, all obligations, liabilities and indebtedness of every nature of
the Pledgor and ICSL from time to time owing to the Secured Party under the
$5,000,000 Amended and Restated Note and any other Transaction Document.
SECTION 2. In order to secure the prompt and unconditional
payment and performance of the Obligations, including without limitation, all
obligations, liabilities and indebtedness of every nature of the Pledgor and
ICSL from time to time owing to the Secured Party under the $5,000,000 Amended
and Restated Note, the Pledgor hereby grants to the Secured Party a continuing
security interest in and to all of the following properties (the "Collateral"):
(a) 1,100 shares of the common capital stock of DNA, evidenced
by Certificate Number 8, and any other shares of the common capital
stock of DNA now owned or hereafter acquired by Pledgor (such shares
of stock referred to in this subsection 1.1(a) are hereinafter
sometimes referred to as the "DNA Shares");
(b) (i) the certificates or instruments, if any, representing
the DNA Shares, (ii) all dividends (cash, stock or otherwise), cash,
instruments, rights to subscribe, purchase or sell and all other
rights and property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such securities, (iii) all replacements, additions to and
substitutions for any of the property referred to in this definition,
including, without limitation, claims against third parties, (iv) the
proceeds, interest, profits and other income of or on any of the
property referred to in this definition, and (v) all books and records
relating to any of the property referred to in this definition; and
(c) all proceeds as such term is defined in Section 9.306(a)
of the Uniform Commercial Code and, in any event, shall include,
without limitation, all dividends or other income from the Collateral,
collections thereon or distributions, liquidation payments or
redemption payments with respect thereto, and any and all rights,
titles, interests, privileges, benefits and preferences appertaining
or incidental to the Collateral.
SECTION 3. The representations and warranties of the Pledgor
contained in Section 3 of the Pledge Agreement are true and correct in all
respects and as of the date hereof as though made on and as of the date hereof.
SECTION 4. Each party hereto represents and warrants that this
Amendment has been duly authorized by it and has been duly executed and
delivered on its behalf, and the Pledge Agreement, after giving effect to this
Amendment, constitutes a valid and legally binding agreement of such party
enforceable against such party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws
of general application relating to or affecting the enforcement of creditors'
rights.
SECTION 5. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provisions, of the
Pledge Agreement, except as expressly amended. The Pledge Agreement, as
amended hereby, and all rights and powers created thereby or thereunder are in
all respects ratified and confirmed and shall remain in full force and effect.
SECTION 6. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered
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shall be an original, but all of which shall constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Pledgor
and the Secured Party.
Section 8. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
Section 9. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
Pledgor: INTELECT SYSTEMS CORPORATION
Address:
1100 Executive Drive By:
Richardson, Texas 75081 ------------------------------------
Name:
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Title:
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SECURED PARTY: ST. JAMES CAPITAL CORP.
Address:
1980 Post Oak Blvd By:
Suite 2030 -----------------------------------
Houston, Texas 77056 Name:
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Title:
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