SECOND AMENDMENT AND AGREEMENT
THIS SECOND AMENDMENT AND AGREEMENT is made as of the 15th day of August,
2002, by and between FLEET PRECIOUS METALS INC., a Rhode Island corporation with
its principal office at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000
("FPM"), and SEMX CORPORATION, a Delaware corporation with its principal office
at Xxx Xxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 (the "Company").
W I T N E S S E T H:
WHEREAS, FPM and the Company are parties to a certain Amended and Restated
Consignment Agreement dated as of June 30, 2000, as amended by a certain First
Amendment and Agreement dated as of July 19, 2002 (as it has been or may be
modified from time to time, the "Consignment Agreement"), pursuant to which FPM
agreed to consign certain commodities to the Company upon the terms and
conditions specified therein (the "Consignment Facility");
WHEREAS, the Company's obligations under the Consignment Agreement are
secured by that certain Security Agreement by and between FPM and the Company
dated as of December 23, 1996 (as it has been or may be modified from time to
time, the "Security Agreement"), pursuant to which the Company has granted to
FPM a security interest in certain Collateral (as defined in the Security
Agreement);
WHEREAS, the Consignment Agreement, the Security Agreement and all other
agreements, instruments and documents executed in connection with the
Consignment Agreement (as they have been or may be modified from time to time)
are sometimes hereinafter collectively referred to as the "Consignment
Documents";
WHEREAS, the Company has also obtained financing pursuant to Revolving
Credit, Term Loan and Security Agreement dated October 29, 1999 (as it may have
been or may be modified or replaced from time to time, the "PNC Agreement")
among the Company, PNC Bank, National Association, as Agent ("PNC") and certain
others; and
WHEREAS, the Maturity Date is August 16, 2002 and the Company has requested
an extension of the Maturity Date; and
WHEREAS, FPM has agreed to do so, but only on the terms and conditions set
forth herein.
NOW THEREFORE, for value received and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Consignment Limit. Section 1.10 of the Consignment Agreement is hereby
amended in its entirety to read as follows:
"1.10. 'Consignment Limit' means the lesser of:
(a) an amount equal to the lesser of:
(i) One Million Two Hundred Thousand Dollars ($1,200,000);
or
(ii) The value (as determined pursuant to Paragraph 2.2
hereof) of up to Three Thousand Three Hundred
Fifty-Five (3,355) fine xxxx ounces of gold minus the
aggregate value of all Consigned Precious Metals
returned to FPM pursuant to Paragraph 2.11(c) hereof;
or
(b) such other limit as FPM may approve in writing in its sole
discretion."
2. Maturity Date. Section 1.27 of the Consignment is hereby amended in its
entirety to read as follows:
"1.27 'Maturity Date' means September 16, 2002."
3. Deferral of Certain Charge. FPM hereby defers the Company's obligation
to pay a waiver and extension fee in the amount of $15,000.00 (which the Company
hereby acknowledges as due and outstanding) (the "Deferred Fee") to August 29,
2002, provided however, that FPM agrees to waive the Deferred Fee upon FPM's
receipt of satisfactory evidence on or before August 29, 2002 that the expiry
dates of both: (a) a certain Irrevocable Documentary Standby Letter of Credit
No. 8-0024 dated July 18, 2002 issued by Wilmington Trust FSB in favor for the
account of ACI Capital Fund, LP for an amount not to exceed $250,000, and (b) a
certain Irrevocable Standby Letter of Credit dated July 19, 2002 issued by PNC
Bank, National Association in favor of Fleet Precious Metals, Inc. for an amount
not to exceed $150,000, have been extended to no earlier than October 30, 2002.
4. Conditions Precedent; Conditions Subsequent.
(a) This Amendment shall be effective upon the satisfaction of each
of the following:
(i) execution and delivery of this Amendment by each of the
Company and FPM;
(ii) execution by the Company and delivery to FPM of the
Company's resolutions substantially is the form
attached as Exhibit A hereto; and
(iii) receipt by FPM of the Company's payment of FPM's costs
(including reasonable attorneys' fees and expenses of
$3,000.00 through August 16, 2002) relating to the
negotiation, drafting and execution of this Amendment
and all matters incidental thereto.
(b) The effectiveness of this Amendment shall be contingent upon
receipt by FPM, either physically at FPM's vault in Providence,
Rhode Island or
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through a recognized third party, of the return of 100 fine xxxx
ounces gold of Consigned Precious Metal by close of business on
August 23, 2002.
5. Miscellaneous.
(a) Except as amended hereby, the Consignment Documents shall remain
in full force and effect and are in all respects hereby ratified
and affirmed.
(b) The Company hereby affirms each representation, warranty and
covenant set forth in the Consignment Documents as if fully set
forth herein in full. The Company acknowledges and confirms that
there are no defenses, claims or setoffs available to the Company
which would operate to limit its obligations under the
Consignment Documents and hereby releases any and all such
defenses, claims and setoffs, and hereby further releases any and
all causes of action or any other type of claim against FPM or
its employees, representatives, officers and agents of any type
whatsoever, whether or not now known, and regardless of the
nature of the same.
(c) The Company shall pay all out-of-pocket expenses, costs and
charges incurred by FPM (including reasonable fees and
disbursements of counsel) in connection with the preparation and
implementation of this Amendment.
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IN WITNESS WHEREOF, the undersigned parties have caused this First
Amendment and Agreement to be executed by their duly authorized officers as of
the date first above written.
WITNESS: FLEET PRECIOUS METALS INC.
By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
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By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
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WITNESS: SEMX CORPORATION
By:
---------------------------- ----------------------------------
Name:
--------------------------------
Title:
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STATE OF NEW YORK
COUNTY OF __________
On the ____ day of August, 2002, before me personally came____________________,
to me known, who, being by me duly sworn, did depose and say that he/she is the
________________________ of SEMX CORPORATION, and that the foregoing is his/her
free act and deed and the free act and deed of SEMX Corporation.
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Notary Public
My Commission Expires
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EXHIBIT A
CERTIFIED CORPORATE RESOLUTIONS
To: Fleet Precious Metals Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Att'n: Xxxx X. Xxxxxxx
Vice President
The undersigned Secretary of SEMX CORPORATION, a Delaware corporation (the
"Corporation"), hereby certifies that at a meeting of the Board of Directors of
the Corporation duly called and held as of the 15th day of August, 2002 at
which meeting a quorum was duly present and acting throughout, the following
votes were duly adopted:
VOTED: That the Chairman, the President, any Vice President or Treasurer
of the Corporation, signing singly, and their respective
successors in office, be and they hereby are authorized,
empowered and directed on behalf of the Corporation to do and
perform all acts and things and to execute, acknowledge and
deliver all instruments and documents of whatsoever kind and
nature necessary or incidental to or required by Fleet Precious
Metals Inc., a Rhode Island corporation ("FPM"), for the
transaction of all of the business of the Corporation with FPM,
and, without limiting the generality of the foregoing, in
particular (i) to sign, endorse or deposit any and all drafts,
notes, acceptances, documents of title, contracts for the opening
of commercial credits and for the creation of acceptances, and
spot or forward contracts in foreign exchange, and the use is
hereby authorized of a rubber stamp endorsement on drafts, notes
and acceptances whose proceeds are credited to any account of the
Corporation with FPM; (ii) to borrow and otherwise effect
consignments, loans and advances or any extensions of credit, at
any time and in any amount or form, for this Corporation from
FPM; (iii) to sell to or discount with FPM any or all commercial
paper, receivables and other evidences of debt at any time held
by the Corporation; and (iv) to pledge, hypothecate, mortgage,
assign, transfer, endorse and deliver to FPM as security for the
payment of any obligation at any time owed to FPM, any and all
property of every description, real or personal, and any interest
therein at any time held by the Corporation; and it is further
VOTED: That the Corporation enter into a Second Amendment and Agreement
(the "Second Amendment Agreement") with FPM pursuant to which the
parties will amend that certain Amended and Restated Consignment
Agreement by and between FPM and the Corporation dated as of June
30, 2000, as amended by a certain First Amendment and Agreement
dated as
of July 19, 2002 (the "Consignment Agreement"): (i) to extend the
maturity of the consignment facility to September 16, 2002; and
(ii) to make certain other conforming or otherwise necessary
changes in the Consignment Agreement; which Amendment Agreement
is to be substantially in the form presented to this meeting,
with such changes in the text, form and terms thereof as the
officer of the Corporation executing such document may deem
necessary or desirable and proper (the necessity or desirability
and propriety of such changes to be conclusively evidence by the
execution and delivery of such document); and it is further
VOTED: That the Chairman, the President, any Vice President or Treasurer
be, and any one of them acting singly hereby is, authorized,
empowered and directed to execute, acknowledge and deliver to FPM
the Second Amendment on behalf of the Corporation; and it is
further
VOTED: That the Chairman, the President, any Vice President or Treasurer
be, and any one of them hereby is, authorized, empowered and
directed to execute, acknowledge and deliver to FPM any and all
other documents (including, without limitation, any UCC Financing
Statements) and to take any and all other action as such officer
deems appropriate to effectuate the purposes of these
resolutions; and any and all documents and agreements heretofore
executed, acknowledged and delivered and acts or things
heretofore done to effectuate the purposes of these resolutions
are hereby in all respects ratified, confirmed and approved as
the act or acts of the Corporation; and it is further
VOTED: That FPM is hereby authorized to rely upon these resolutions and
the following certificate of the Secretary of the Corporation
until FPM receives written notice of the revocation thereof.
I hereby certify that I have personally examined the Articles or
Certificate of Incorporation and By-laws and all amendments thereto of the
Corporation and the agreements, indentures and other instruments to which the
Corporation is a party; that neither the resolutions set forth above nor any
action taken or to be taken pursuant thereto are or will be in contravention of
any provision or provisions of the Articles or Certificate of Incorporation or
By-laws of the Corporation or any agreement, indenture or other instrument to
which the Corporation is a party; that neither the Articles or Certificate of
Incorporation of the Corporation nor any amendment thereto contains any
provisions requiting any vote or consent of shareholders of the Corporation to
authorize any creation of a security interest in all or any part of the
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Corporation's property or any interest therein or to authorize any other action
taken or to be taken pursuant to such resolutions; that the foregoing
resolutions are and remain in full force and effect on and as of the date of
this certificate, and have not been amended or revoked; and that the following
were duly elected to and are now holding the offices set opposite their
signatures:
Title Name Signature
----- ---- ---------
Chairman
----------------------- -----------------------
President
----------------------- -----------------------
Vice President
----------------------- -----------------------
Secretary, Treasurer and Xxxx X. Xxxx
Controller -----------------------
I certify that attached hereto is a true and correct copy of the bylaws
of the Corporation.
IN WITNESS WHEREOF, I have set my hand and affixed the seal of the
Corporation as of the ____ day of August, 2002.
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Xxxx X. Xxxx
Secretary
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