Exhibit 10-16
EIGHTEENTH AMENDMENT AGREEMENT
THIS EIGHTEENTH AMENDMENT AGREEMENT (this "Agreement") is made as of
the 7(th) day of November, 2003, by and among BANK ONE, NA (fka Bank One, Akron,
NA) ("Lender"), LEXINGTON PRECISION CORPORATION, a Delaware corporation ("LPC"),
and LEXINGTON RUBBER GROUP, INC. (fka Lexington Components, Inc.), a Delaware
corporation ("LRG", hereinafter LPC and LRG are referred to each as "Borrower"
singularly and referred to jointly and severally as "Borrowers", which term
shall mean each of the companies individually and both of the companies
collectively).
WHEREAS, Borrowers and Lender are parties to a certain Credit Facility
and Security Agreement, including Rider A thereto, dated as of January 31, 1997,
as amended and as it may from time to time be further amended, supplemented or
otherwise modified, which provides for certain credit facilities all upon the
terms and conditions set forth therein ("Credit and Security Agreement");
WHEREAS, Borrowers and Lender desire to amend the Credit and Security
Agreement to modify certain provisions thereof; and
WHEREAS, each term used herein shall be defined in accordance with the
Credit and Security Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein and for other valuable considerations, Borrowers and Lender
agree as follows:
1. Section 2(B)(2)(b) of the Credit and Security Agreement is
hereby deleted in its entirety with the following being inserted in place
thereof:
(b) Fixed Principal Installments. Subject
otherwise to the terms and provisions of the North Canton Term
Note, the principal balance of the North Canton Term Loan
shall be payable in full on November 21, 2003.
2. Section 2(C)(2)(b) of the Credit and Security Agreement is
hereby deleted in its entirety with the following being inserted in place
thereof:
(b) Fixed Principal Installments. Subject
otherwise to the terms and provisions of the Vienna Term Note,
the principal balance of the Vienna Term Loan shall be payable
in full on November 21, 2003.
3. Section 2(D)(2) of the Credit and Security Agreement is hereby
deleted in its entirety with the following being inserted in place thereof:
2. CASA GRANDE TERM LOAN. At the end of the Casa Grande
Commitment Period, the Casa Grande Construction Loans automatically
converted to a term loan (the "Casa Grande Term Loan"). The Casa Grande
Note shall evidence the Casa Grande Term Loan. The Casa Grande Term
Loan shall be payable in full on November 21, 2003. The Casa Grande
Term Loan shall bear interest on the unpaid principal balance at a rate
per annum equal to the Base Rate plus three-fourths of one percent
(3/4%). Such interest is payable on November 21, 2003. Interest shall
be computed on a three hundred sixty (360) day basis based upon the
actual number of days elapsed.
4. Section 2(E)(2)(b) of the Credit and Security Agreement is
hereby deleted in its entirety with the following being inserted in
place thereof:
(b) Fixed Principal Installments. Subject
otherwise to the terms and provisions of the LaGrange Term
Note, the principal balance of the LaGrange Term Loan shall be
payable in full on November 21, 2003.
5. As a condition precedent to the effectiveness of this
Agreement, Borrowers shall pay all reasonable legal fees and expenses of Lender
incurred in connection with this Agreement.
6. Borrowers hereby represent and warrant to Lender that (a) each
Borrower has the legal power and authority to execute and deliver this
Agreement; (b) this Agreement has been duly executed and delivered by each
Borrower; (c) the execution and delivery hereof by each Borrower and the
performance and observance by each Borrower of the provisions hereof do not
violate or conflict with the organizational documents of such Borrower or any
law applicable to such Borrower or result in a breach of any provision of or
constitute a default under any other agreement, instrument or document binding
upon or enforceable against such Borrower; (d) as of the date hereof, and after
giving effect to the transactions contemplated by this Agreement, each Borrower
is able to pay its debts as they mature and each Borrower's capital is
sufficient and not unreasonably small for the business and transaction in which
such Borrower is engaged or about to engage; (e) no Default or Event of Default
exists under the Credit and Security Agreement, nor will a Default or Event of
Default occur upon the execution and delivery of this Agreement; and (f) this
Agreement has been duly authorized, executed, and delivered by each Borrower and
constitutes a legal, valid and binding obligation of each Borrower, enforceable
in accordance with its terms.
7. Each reference that is made in the Credit and Security
Agreement or any other writing shall hereafter be construed as a reference to
the Credit and Security Agreement as amended hereby. Except as herein otherwise
specifically provided, all provisions of the Credit and Security Agreement shall
remain in full force and effect in accordance with their terms and shall not be
amended or modified hereby.
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8. This Agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts and by facsimile
signature, each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.
9. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
OHIO. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR AS REQUIRED BY
APPLICABLE LAW, EACH BORROWER WAIVES (i) PRESENTMENT, DEMAND AND PROTEST AND
NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NONPAYMENT, MATURITY, RELEASE,
COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER,
ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL PAPER AND GUARANTIES
AT ANY TIME HELD BY LENDER ON WHICH ANY BORROWER MAY IN ANY WAY BE LIABLE, (ii)
NOTICE PRIOR TO TAKING POSSESSION OR CONTROL OF THE COLLATERAL WHICH MIGHT BE
REQUIRED BY ANY COURT PRIOR TO ALLOWING LENDER TO EXERCISE ANY OF LENDER'S
REMEDIES AND (iii) ITS RIGHT TO A JURY TRIAL IN THE EVENT OF ANY LITIGATION
INSTITUTED IN RESPECT OF THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER CREDIT
DOCUMENTS. EACH BORROWER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS
CHOICE WITH RESPECT TO THIS AGREEMENT AND THE TRANSACTIONS EVIDENCED BY THIS
AGREEMENT. EACH BORROWER HEREBY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL
ACTION IN CONNECTION WITH THIS AGREEMENT MAY BE INSTITUTED IN THE COURTS OF THE
STATE OF OHIO, IN THE COUNTY OF XXXXX OR THE UNITED STATES COURTS FOR THE
NORTHERN DISTRICT OF OHIO, AS LENDER MAY ELECT, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO, FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, THE NON-EXCLUSIVE JURISDICTION OF ANY
SUCH COURT, AND TO ALL PROCEEDINGS IN SUCH COURTS. BORROWERS AND LENDER
ACKNOWLEDGE THAT JURY TRIALS OFTEN ENTAIL ADDITIONAL EXPENSES AND DELAYS NOT
OCCASIONED BY NON-JURY TRIALS. BORROWERS AND LENDER AGREE AND STIPULATE THAT A
FAIR TRIAL MAY BE HAD BEFORE A STATE OR FEDERAL JUDGE BY MEANS OF A BENCH TRIAL
WITHOUT A JURY. IN VIEW OF THE FOREGOING, AND AS A SPECIFICALLY NEGOTIATED
PROVISION OF THIS AGREEMENT, BORROWERS AND LENDER HEREBY EXPRESSLY WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING
UNDER THIS AGREEMENT, OR THE TRANSACTIONS RELATED HERETO, WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND
BORROWERS AND LENDER HEREBY AGREE AND CONSENT THAT BORROWERS OR LENDER MAY FILE
AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
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EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
LEXINGTON PRECISION CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President
LEXINGTON RUBBER GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President
BANK ONE, NA
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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