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Exhibit ▇▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇▇ COMPONENTS, INC.
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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SECOND
AMENDMENT AGREEMENT
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I hereby certify that the within Amendment
Agreement was filed for record in my office
at _____ M. o'clock on the ____ day of
June, 1998, and was immediately entered
upon the proper indexes and duly recorded
in Book _____ of Real Estate Mortgages,
page _____________ .
R.M.C./Clerk of Court
York County, South Carolina
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SECOND AMENDMENT AGREEMENT
SECOND AMENDMENT AGREEMENT dated as of this 23rd day of June, 1998, to
be effective on May 1, 1998, between Lexington Components, Inc., a Delaware
corporation ("LCI"), formerly known as EPI Acquisitions Corp. ("EPI"), and ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇").
WHEREAS, EPI and ▇▇▇▇▇▇▇ entered into certain financing agreements
pursuant to that certain Asset Purchase Agreement dated as of November 30, 1988
(the "Purchase Agreement") between EPI and ▇▇▇▇▇▇▇;
WHEREAS, such financing agreements consist of a Promissory Note dated
November 30, 1988 from EPI to ▇▇▇▇▇▇▇ in the original principal amount of
$3,530,000, (the "Note"; the Note, as amended by this Amendment Agreement, is
referred to as the "Amended Note"), a Mortgage dated as of November 30, 1988
from EPI to ▇▇▇▇▇▇▇ (the "Mortgage") and a Security Agreement dated as of
November 30, 1988 between EPI and ▇▇▇▇▇▇▇ (the "Security Agreement"; the Note,
the Mortgage and the Security Agreement, as the same have heretofore or
contemporaneously been amended, modified or supplemented, are herein
collectively referred to as the "Financing Agreements");
WHEREAS, the Note was amended by that certain Amendment Agreement dated
as of November 30, 1991, and recorded with the Clerk of Court of York County,
South Carolina as Book 355 at Page 195 on December 16, 1991.
WHEREAS, pursuant to the terms thereof, the principal amount of the
Note and the term thereof have been amended as a result of that certain Release
and Notice Agreement dated as of March 31, 1993 between LCI and ▇▇▇▇▇▇▇, and
there is outstanding, as of the effective date hereof, $1,370,015.65 principal
amount thereunder, with a maturity of April 30, 2000;
WHEREAS, LCI and ▇▇▇▇▇▇▇ desire to further amend the Note in the manner
set forth below;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, LCI and ▇▇▇▇▇▇▇, intending to be
legally bound, hereby agree as follows:
1. AMENDMENT OF NOTE. (a) The first paragraph on page 1 of the Note, as
amended, is hereby amended by deleting from the third and fourth lines thereof
the words "FOUR MILLION FIVE HUNDRED EIGHTY THOUSAND ONE HUNDRED EIGHTY-FIVE AND
17/100 DOLLARS ($4,580,185.17)" and substituting therefor the words "ONE MILLION
THREE HUNDRED SEVENTY THOUSAND FIFTEEN AND 65/100 DOLLARS ($1,370,015.65)."
(b) The Note, as amended, is hereby further amended by deleting
therefrom the second and third paragraphs on page 1 thereof in their entirety
and substituting therefor the following paragraph:
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The principal of and interest on this Note shall be
payable as follows:
(i) Monthly interest only payments in the amount of
$13,700.16 each shall be payable on the last day of each month
commencing May 31, 1998 and on the last day of each month
thereafter until January 31, 2000. Simple interest on the
principal amount hereunder shall accrue at the rate of 12% per
annum until the principal balance is paid in full;
(ii) The principal sum of the Note, together with all
accrued and unpaid interest thereon, if any, shall be due and
payable on January 31, 2000; and
(iii) Any payment which is required to be made on a
Saturday, Sunday or legal holiday shall be payable on the next
succeeding day which is not a Saturday, Sunday or legal
holiday.
(c) ▇▇▇▇▇▇▇ shall cause the following legend to be
placed prominently on the Note:
THIS NOTE HAS BEEN AMENDED BY A SECOND
AMENDMENT AGREEMENT DATED EFFECTIVE AS
OF MAY 1, 1998, A COPY OF WHICH IS AVAILABLE
FOR INSPECTION AT THE OFFICES OF BUYER AT
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇.
(d) To the extent that this Second Amendment
Agreement amends the Note, the Note is hereby amended. All references to the
Note in the Purchase Agreement and the Financing Agreements or any other
agreement or document relating to the Financing Agreements shall be deemed to
refer to the Amended Note.
2. FURTHER ASSURANCES. Each of the parties hereto shall execute and
deliver such additional documents and take such additional actions as may be
requested by the other party to effectuate the provisions and purposes of this
Second Amendment Agreement. In connection therewith, LCI shall cause Lexington
Precision Corporation to execute and deliver to ▇▇▇▇▇▇▇ a consent in the form of
EXHIBIT A hereto (the "Consent").
3. NOTICES. The parties agree that all notices, demands, requests or
communications to be made under or pursuant to the Mortgage or the Security
Agreement shall hereafter be made in the manner set forth in the Mortgage or the
Security Agreement, as applicable, to the following addresses or to such other
addresses as either party may specify in writing to the other:
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If to ▇▇▇▇▇▇▇:
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
If to LCI:
Lexington Components, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to:
Nixon, Hargrave, Devans & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.. Esq.
4. MORTGAGE. For purposes of notifying persons of the amendment of the
Note and the effect thereof upon the Mortgage, it is intended that this Second
Amendment Agreement shall be filed with the real estate mortgages of York
County, South Carolina. For purposes of the foregoing, EXHIBIT B hereto sets
forth a description of the real property to which the Mortgage relates.
5. REPRESENTATIONS AND WARRANTIES. LCI hereby represents and warrants
to ▇▇▇▇▇▇▇ that: (a) LCI has full power and authority to execute and deliver
this Second Amendment Agreement; (b) this Second Amendment Agreement constitutes
the legal, valid and binding obligation of LCI, enforceable against LCI in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforceability of creditors' rights generally or equitable principles
at the time in effect; (c) the execution, delivery and performance by LCI of
this Second Amendment Agreement have been duly authorized by all requisite
corporate action of LCI ; and (d) the execution and delivery by LCI of this
Second Amendment Agreement and the performance by LCI of the Amended Note will
not (i) violate any law or regulation or the Certificate of Incorporation or
By-laws of LCI, (ii) violate or constitute (with due notice or lapse of time or
both) a default under any indenture, agreement, license or other instrument to
which LCI is a party or by which
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it or any of its properties may be bound, (iii) violate any order of any court,
tribunal or governmental agency binding upon LCI or its properties, (iv) result
in the creation or imposition of any Lien of any nature whatsoever upon any
properties or assets of LCI other than pursuant to the Financing Agreements, or
(v) require any license, consent or approval of any governmental agency or
regulatory authority.
6. MISCELLANEOUS. (a) This Second Amendment Agreement shall be governed
by and construed and interpreted in accordance with the laws of the State of New
York without reference to its principles of conflicts of law.
(b) Except as expressly amended hereby, all terms and
conditions of the Financing Agreements and all rights of ▇▇▇▇▇▇▇ and obligations
of LCI thereunder and under all related documents, shall remain in full force
and effect.
(c) LCI hereby agrees to pay on demand all costs and expenses
(including without limitation the reasonable fees and expenses of counsel to
▇▇▇▇▇▇▇) incurred by ▇▇▇▇▇▇▇ in connection with the negotiation, preparation,
execution and delivery of this Second Amendment Agreement and all related
documents.
(d) This Amendment Agreement may be executed by one or more of
the parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment Agreement as of the date first above written.
IN THE PRESENCE OF:
LEXINGTON COMPONENTS, INC. (SEAL)
▇. ▇▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Witness (as to Lexington ▇▇▇▇▇▇ ▇▇▇▇▇▇
Components, Inc.) President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Witness (as to Lexington
Components, Inc.)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (SEAL)
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Witness (as to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
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Witness (as to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇)
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CONSENT
The undersigned guarantor hereby consents to the Second Amendment
Agreement dated effective as of May 1, 1998 between LEXINGTON COMPONENTS, INC.
("LCI"), formerly known as EPI Acquisitions Corp. ("EPI"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇") and ratifies and confirms the terms of its Guaranty dated November
30, 1988 as applicable to all present and future indebtedness, liabilities and
obligations of LCI to ▇▇▇▇▇▇▇ including, without limitation, all indebtedness,
liabilities and obligations under the amended promissory note dated November 30,
1988 in the original principal amount of $3,530,000 issued by EPI in favor of
▇▇▇▇▇▇▇ (the "Note"), which principal amount has been decreased to $1,370,015.65
as of May 1, 1998 pursuant to the terms and conditions of the Note, as amended
by the foregoing Second Amendment Agreement. The undersigned also acknowledges
and agrees that all references in the Guaranty to the Note shall be deemed to
refer to the Note as amended pursuant to the foregoing Second Amendment
Agreement.
(SEAL) LEXINGTON PRECISION CORPORATION
(formerly known as ▇▇▇▇▇▇▇ Industries, Inc.)
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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EXHIBIT B
All that certain piece, parcel or tract of land lying, being and situate in
Ebenezer Township, York County, S.C. in Section II of the Rock Hill Airport
Industrial Park, on the northwestern side of ▇▇▇▇▇▇ Boulevard, a short distance
south of but not abutting on Homestead Road, and being more particularly
described as follows: Beginning at an iron on the Northwestern edge of ▇▇▇▇▇▇
Boulevard at the commencement of its curve of intersection with a 70 foot
reserved strip, such strip lying between premises herein conveyed and property
of Williams, Yanutola, and ▇▇▇▇▇▇▇; and running thence with the northwestern
edge of ▇▇▇▇▇▇ Boulevard in a southwesterly direction along a curve having a
radius of 970 feet for a distance of 387.21 feet to an iron; thence continuing
with said street S38 degrees 32'59"W 381.19 feet to an iron; thence N87 degrees
05'37"W 350 feet to an iron sitting in the line of the property of ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇; thence crossing previously closed and abandoned Cross Wind Runway N02
degrees 54'23"E 562.46 feet to an iron on the aforementioned 70 foot reserved
strip; thence with said reserved strip N79 degrees 33'39"E 688.13 feet to an
iron at the commencement of the curve of its intersection with ▇▇▇▇▇▇ Boulevard;
thence following the curve of said intersection in a clockwise direction along a
curve having a radius of 50 feet for an arc distance of 101.33 feet to the
beginning; being shown and designated as Tract A, Section II, Rock Hill Airport
Industrial Park, containing 8.406 acres, more or less, as shown upon plat
prepared for EPI Acquisitions Corp., by ▇▇▇▇ ▇. ▇▇▇▇▇ Surveying and Mapping
dated November 30, 1988.
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STATE OF NEW YORK :
COUNTY OF NEW YORK : PROBATE
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named Lexington Components, Inc., by its officer(s),
sign, affix the corporate seal, and as the act and deed of Lexington Components,
Inc. deliver the within written Second Amendment Agreement that (s)he witnessed
the execution thereof by Lexington Components, Inc.
SWORN to before me this
23rd day of June, 1998
(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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NOTARY PUBLIC FOR NEW YORK Witness
My Commission Expires: April 4, 2000
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STATE OF FLORIDA :
COUNTY OF NASSAU : PROBATE
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ sign and deliver the within
written Amendment Agreement, that (s)he witnessed the execution thereof by ▇▇▇▇
▇. ▇▇▇▇▇▇▇.
SWORN to before me this
22 day of June, 1998.
(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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NOTARY PUBLIC FOR FLORIDA Witness
My Commission Expires:
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