Exhibit 10-4
State of South Carolina,
COUNTY OF YORK
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LEXINGTON RUBBER GROUP, INC.
AND
PAUL H. PENNELL
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TENTH
AMENDMENT AGREEMENT
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I hereby certify that within Amendment Agreement was filed
for record in my office at ________________M. o'clock on
the ___ day of _____________, 2001 and was immediately
entered upon the proper indexes and duly recorded in Volume
___ of Real Estate Mortgages, page _______.
R.M.C./Clerk of Court
York County, South Carolina
TENTH AMENDMENT AGREEMENT
TENTH AMENDMENT AGREEMENT dated as of October 31, 2001, between
Lexington Rubber Group, Inc., a Delaware corporation ("LRGI"), formerly known as
Lexington Components, Inc., which, in turn, was formerly known as EPI
Acquisitions Corp. ("EPI"), and Paul H. Pennell ("Pennell").
WHEREAS, EPI and Pennell entered into certain financing agreements
pursuant to that certain Asset Purchase Agreement dated as of November 30, 1988
(the `Purchase Agreement"), between EPI and Pennell; and
WHEREAS, such financing agreements consist of a Promissory Note dated
November 30, 1988, from EPI to Pennell in the original principal amount of
$3,530,000 (the "Note"; the Note, as heretofore amended and as amended by this
Amendment Agreement, is referred to as the "Amended Note"), a Mortgage dated as
of November 30, 1988, from EPI to Pennell (the "Mortgage") and a Security
Agreement dated as of November 30, 1988, between EPI and Pennell (the "Security
Agreement"; the Note, the Mortgage and the Security Agreement, as the same have
heretofore have been or contemporaneously are being amended, modified or
supplemented, are herein collectively referred to as the "Financing
Agreements"); and
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; and
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 Pennell; and
WHEREAS, the Note was amended by that certain Second Amendment
Agreement dated as of June 23, 1998 and effective on May 1, 1998, and recorded
with the Clerk of Court of York County, South Carolina, in Volume 2294 at Page
107 on June 24, 1998; and
WHEREAS, the Note was amended by that certain Third Amendment Agreement
dated as of January 31, 2000, and recorded with the Clerk of Court of York
County, South Carolina, in Volume ___ at page ___ on _________, 2000; and
WHEREAS, the Note was amended by that certain Fourth Amendment
Agreement dated as of April 30, 2000, and recorded with the Clerk of Court of
York County, South Carolina, in Volume ___ at page ___ on _________, 2000; and
WHEREAS, the Note was amended by that Fifth Amendment Agreement dated
as of July 31, 2000, and recorded with the Clerk of York County, South Carolina
in Volume ___ at page ___ on _________, 2000; and
WHEREAS, the Note was amended by that Sixth Amendment Agreement dated
as of October 31, 2000, and recorded with the Clerk of York County, South
Carolina in Volume ___ at page ___ on _________, 2000; and
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WHEREAS, the Note was amended by that Seventh Amendment Agreement dated
as of January 31, 2001, and recorded with the Clerk of York County, South
Carolina in Volume ___ at page ___ on _________, 2001; and
WHEREAS, the Note was amended by that Eighth Amendment Agreement dated
as of April 30, 2001, and recorded with the Clerk of York County, South Carolina
in Volume ___ at page ___ on _________, 2001; and
WHEREAS, the Note was amended by that Ninth Amendment Agreement dated
as of July 31, 2001, and recorded with the Clerk of York County, South Carolina
in Volume ___ at page ___ on _________, 2001; and
WHEREAS, LRGI and Pennell 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, LRGI and Pennell, intending to be
legally bound, hereby agree as follows:
1. Amendment of Note.
(a) The Note, as amended, is hereby further amended by deleting
therefrom the second and third paragraph on page 1 thereof in their entirety and
substituting therefor the following paragraph:
The principal of and interest on this Note shall be payable as
follows:
(i) Monthly payments of principal and interest in the amount
of $30,475.24 each shall be payable November 30, 2001, and on the last
day of each month thereafter until October 31, 2006;
(ii) Any payment that is required to be made on a Saturday,
Sunday or legal holiday shall be payable on the next succeeding day
that is not a Saturday, Sunday or legal holiday; and
(iii) The principal sum of the Note may be prepaid, without
premium or penalty, at any time or from time to time, in whole or in
part. Each prepayment of principal shall be accompanied by the payment
of interest accrued on the amount of such prepayment to the date of
prepayment at the rate of 12% per annum.
(b) Pennell shall cause the following legend to be placed prominently
on the Note;
THIS NOTE HAS BEEN AMENDED BY A TENTH AMENDMENT
AGREEMENT DATED AS OF OCTOBER 31, 2001, A COPY OF
WHICH IS AVAILABLE FOR INSPECTION AT THE OFFICES OF
BUYER AT 767 THIRD AVENUE, 29TH FLOOR, NEW YORK, NEW
YORK.
(c) To the extent that this Tenth Amendment Agreement amends the Note,
as heretofore amended, the Note is hereby amended. All references to the Note in
the Purchase Agreement and the
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Financing Agreements or any other agreement or document relating to the
Financing Agreements shall be deemed to refer to the Amended Note.
1. 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
Tenth Amendment Agreement. In connection therewith, LRGI shall cause Lexington
Precision Corporation to execute and deliver to Pennell a consent in the form of
Exhibit A hereto (the "Consent").
2. Mortgage. For purposes of notifying persons of the amendment of the
Note pursuant to this Tenth Amendment Agreement and the effect thereof upon the
Mortgage, it is intended that this Tenth 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.
3. Representations and Warranties. LRGI hereby represents and warrants
to Pennell that: (a) LRGI has full power and authority to execute and deliver
this Tenth Amendment Agreement; (b) this Tenth Amendment Agreement constitutes
the legal, valid and binding obligation of LRGI, enforceable against LRGI 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 LRGI of
this Tenth Amendment Agreement have been duly authorized by all requisite
corporate action of LRGI; and (d) the execution and delivery by LRGI of this
Tenth Amendment Agreement and the performance by LRGI of the Amended Note will
not (i) violate any law or regulation binding upon LRGI or the Certificate of
Incorporation or By-laws of LRGI, (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 LRGI is a party or by which it or any of its
properties may be bound, (iii) violate any order of any court, tribunal or
governmental agency binding upon LRGI or its properties, (iv) result in the
creation or imposition of any Lien of any nature whatsoever upon any properties
or assets of LRGI other than pursuant to the Financing Agreements, or (v)
require any license, consent or approval of any governmental agency or
regulatory authority.
4. Miscellaneous. This Tenth 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 Pennell and obligations
of LRGI thereunder and under all related documents, shall remain in full force
and effect.
(c) LRGI hereby agrees to pay on demand all costs and expenses
(including without limitation the reasonable fees and expenses of counsel to
Pennell) incurred by Pennell in connection with the negotiation, preparation,
execution and delivery of this Tenth Amendment Agreement and all related
documents.
(d) This Tenth 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Tenth
Amendment Agreement as of the date first above written.
IN THE PRESENCE OF: LEXINGTON RUBBER GROUP, INC. (SEAL)
Angela Evans By: Warren Delano
- ------------------------------------------- --------------------------------------------
Witness (as to Lexington Rubber Group, Inc.) Warren Delano
President
Michael A. Lubin
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Witness (as to Lexington Rubber Group, Inc.)
RC Smith Paul H. Pennell
- -------------------------------------------- -------------------------------------- (SEAL)
Witness (as to Paul H. Pennell) Paul H. Pennell
Wendy Smith
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Witness (as to Paul H. Pennell)
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Exhibit A
CONSENT
The undersigned guarantor hereby consents to the Tenth Amendment
Agreement dated as of July 31, 2001, between LEXINGTON RUBBER GROUP, INC.
("LRGI"), formerly known as Lexington Components, Inc., which, in turn, was
formerly known as EPI Acquisitions Corp. ("EPI"), and Paul H. Pennell
("Pennell") and ratifies and confirms the terms of its Guaranty dated November
30, 1998, as applicable to all present and future indebtedness, liabilities and
obligations of LRGI to Pennell 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
Pennell (the "Note"), which principal amount was decreased to $1,370,015.65 as
of May 1, 1998, pursuant to the terms and conditions of the Note, as amended by
the Second Amendment Agreement effective as of May 1, 1998, the Third Amendment
Agreement effective as of January 31, 2000, the Fourth Amendment Agreement dated
as of April 30, 2000, the Fifth Amendment Agreement dated as of July 31, 2000,
the Sixth Amendment Agreement dated as of October 31, 2000, the Seventh
Amendment Agreement dated as of January 31, 2001, the Eighth Amendment dated as
of April 30, 2001, and the Ninth Amendment dated as of July 31, 2001. The
undersigned also acknowledges and agrees that all references in the Guaranty to
the Note shall be deemed to refer to the Note as heretofore amended and as
amended pursuant to the foregoing Tenth Amendment Agreement.
(SEAL) LEXINGTON PRECISION CORPORATION
(formerly known as Blasius Industries,Inc.)
By: Warren Delano
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Warren Delano
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 Bryant 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 Bryant
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 Yeargin; and running thence with the northwestern
edge of Bryant 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(0)32'59"W 381.19 feet to an iron; thence N87(0)05'37"W 350
feet to an iron sitting in the line of the property of David N. Fishner; thence
crossing previously closed and abandoned Cross Wind Runway N02(0)54'23"E 562.46
feet to an iron on the aforementioned 70 foot reserved strip; thence with said
reserved strip N79(0)33'39"E 688.13 feet to an iron at the commencement of the
curve of its intersection with Bryant 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 Fred J. Hager Surveying and Mapping dated November 30, 1988.
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STATE OF NEW YORK :
COUNTY OF NEW YORK :
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named Lexington Rubber Group, Inc., by its officer,
sign, affix the corporate seal, and, as the act and deed of Lexington Rubber
Group, Inc., deliver the within written Tenth Amendment Agreement.
SWORN to before me this
_____ day of November, 2001
(SEAL)
Dorothy S. Hirshfield Angela Evans
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NOTARY PUBLIC FOR NEW YORK Witness
My Commission Expires: May 9, 2002
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STATE OF FLORIDA :
COUNTY OF NASSAU :
PERSONALLY appeared before me the undersigned witness and made oath
that (s)he saw the within named Paul H. Pennell sign and deliver the within
written Tenth Amendment Agreement.
SWORN to before me this
_____ day of November, 2001
(SEAL)
RC Smith
- ----------------------------------------------------- ------------------
NOTARY PUBLIC FOR FLORIDA Witness
My Commission Expires:
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CONSENT
The undersigned guarantor hereby consents to the Tenth Amendment
Agreement dated as of July 31, 2001 between LEXINGTON RUBBER GROUP, INC.
("LRGI"), formerly known as Lexington Components, Inc., which, in turn, was
formerly known as EPI Acquisitions Corp. ("EPI"), and Paul H. Pennell
("Pennell") and ratifies and confirms the terms of its Guaranty dated November
30, 1998, as applicable to all present and future indebtedness, liabilities and
obligations of LRGI to Pennell 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
Pennell (the "Note"), which principal amount was decreased to $1,370,015.65 as
of May 1, 1998, pursuant to the terms and conditions of the Note, as amended by
the Second Amendment Agreement effective as of May 1, 1998, the Third Amendment
Agreement effective as of January 31, 2000, the Fourth Amendment Agreement
effective as of April 30, 2000, the Fifth Amendment Agreement dated as of July
31, 2000, the Sixth Amendment dated as of October 31, 2000, the Seventh
Amendment Agreement dated as of January 31, 2001, the Eighth Amendment dated as
of April 30, 2001, and the Ninth Amendment dated as of July 31, 2001. The
undersigned also acknowledges and agrees that all references in the Guaranty to
the Note shall be deemed to refer to the Note as heretofore amended and as
amended pursuant to the foregoing Tenth Amendment Agreement.
(SEAL) LEXINGTON PRECISION CORPORATION
(formerly known as Blasius Industries,Inc.)
By: Warren Delano
-------------------------------------------
Warren Delano
President