Exhibit 2.5(B)
AMENDMENT NO. 2 TO THE ASSET PURCHASE AGREEMENT
This AMENDMENT NO. 2, dated as of December 23, 1998 (this
"Amendment") by and between Hexcel Corporation, a Delaware corporation ("Buyer")
and EQCSI Holding Corp., a Delaware corporation formerly known as
Xxxxx-Xxxxxxxx, Inc. ("CS Inc."), amends the Asset Purchase Agreement dated as
of July 25, 1998, as amended by Amendment No. 1 thereto dated as of September
14, 1998 (as amended, the "Asset Purchase Agreement") by and among Stamford CS
Acquisition Corp., a Delaware corporation ("Stamford"), Buyer, Xxxxx-Xxxxxxxx
Holdings, Inc., a Delaware corporation ("CSH") and CS Inc.
RECITALS
WHEREAS, Stamford was merged with and into CSH and CSH was
merged with and into CS Inc.;
WHEREAS, CS Inc. and Buyer are currently the remaining parties
to the Asset Purchase Agreement (although certain paragraphs herein continue to
refer to the original parties to the Asset Purchase Agreement for convenience of
reference); and
WHEREAS, the parties hereto wish to amend the Asset Purchase
Agreement as herein provided.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms which are used but not defined
herein shall have the meaning ascribed to such terms in the Asset Purchase
Agreement.
2. AMENDMENTS TO ASSET PURCHASE AGREEMENT
(A) Section 1.2(d) of the Asset Purchase Agreement is hereby
amended by deleting Section 1.2(d) in its entirety and replacing such section
with the following:
1
"(d) $30,000,000 less the Interglas Pre-Payment less
the amount of any premium paid to Credit Suisse First Boston
or any of its affiliates in connection with the Current Cap
Agreement (except to the extent that any amount in respect of
the termination of the Current Cap Agreement was previously
remitted to Buyer pursuant to Section 4.21 hereof), plus the
CS International Expenses, if any (as defined in Section
4.22(b)) (the "Deferred Purchase Price"), payable to CS Inc.
at the Deferred Closing, by wire transfer, to such bank
account as shall be designated by CS Inc. at least two
business days prior to the Deferred Closing;"
(B) Section 4.21 of the Asset Purchase Agreement is hereby
amended by deleting Section 4.21 in its entirety and replacing such section with
the following:
"Section 4.21. CAP AGREEMENT EARLY TERMINATION
PAYMENTS. CSH and CS Inc. agree to remit to Buyer, immediately
upon receipt thereof, any and all early termination payments
paid in connection with the Current Cap Agreement and the
Forward Cap Agreement; provided that Buyer shall not be
entitled to the remittance of such early termination payments
after the Deferred Closing to the extent that the Deferred
Purchase Price was reduced pursuant to Section 1.2(d) to take
into account the Current Cap Agreement and the Forward Cap
Agreement. CSH and CS Inc. agree to take all necessary action
to cause the Trust to distribute to CS Inc. pursuant to
Section 5.3 of the Trust Agreement any and all early
termination payments paid in connection with the Current Cap
Agreement and the Forward Cap Agreement."
(C) Article X of the Asset Purchase Agreement is hereby
amended by deleting the definition of "Cap Agreement" appearing therein and
replacing it with the following:
"'CAP AGREEMENT' means either or both of, as the
context may require, (i) the interest rate cap agreement which
is entered into under the Master Agreement, dated as of the
date hereof, between the Lessor and Credit Suisse Financial
Products and which has an effective date of September 15, 1998
(the "Current Cap Agreement"), and (ii) the
2
interest rate cap agreement which is entered into under such
Master Agreement and which has an effective date of September
30, 2001 (the "Forward Cap Agreement")."
(D) Article X of the Asset Purchase Agreement is hereby
further amended by deleting the definition of "Cap Refund" appearing therein.
3. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York (regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof)
as to all matters, including but not limited to matters of validity,
construction, effect, performance and remedies.
4. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original, but all of which shall constitute
one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
EQCSI HOLDING CORP., formerly known
as XXXXX-XXXXXXXX, INC.
By: /S/ XXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
HEXCEL CORPORATION
By: /S/ XXX X. XXXXXXXX
--------------------------------
Name: Xxx X. Xxxxxxxx
Title: Secretary
3
