Exhibit 10-12
NINTH AMENDMENT AGREEMENT
THIS NINTH AMENDMENT AGREEMENT ("Agreement") is made as of the 1st day
of November, 2002, 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 two (2) equal monthly installments of ELEVEN THOUSAND ONE
HUNDRED ELEVEN AND 11/100 DOLLARS ($11,111.11) each, on November
1, 2002 and December 1, 2002, with the balance thereof payable in
full on January 2, 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 two (2) equal
monthly installments of EIGHT THOUSAND THREE HUNDRED THIRTY THREE
AND 33/100 DOLLARS ($8,333.33) each, on November 1, 2002 and
December 1, 2002, with the balance thereof payable in full on
January 2, 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 two (2) equal monthly installments of SIXTEEN
THOUSAND SIX HUNDRED SIXTY-SIX AND 00/100 DOLLARS ($16,666.00) each,
together with all accrued interest due at the time of payment of
principal, on November 1, 2002 and December 1, 2002, with the balance
thereof payable in full on January 2, 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 (_%). Such
interest is payable monthly on November 1, 2002 and December 1, 2002.
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 two (2)
equal monthly installments of EIGHT THOUSAND EIGHT HUNDRED
EIGHTY-EIGHT AND 89/100 DOLLARS ($8,888.89) each, on November 1,
2002 and December 1, 2002, with the balance thereof payable in
full on January 2, 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.
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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.
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
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THAT BORROWERS OR LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN 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
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Its: President
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LEXINGTON RUBBER GROUP, INC.
(FKA LEXINGTON COMPONENTS, INC.)
By: /s/ Xxxxxx Xxxxxx
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Its: President
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BANK ONE, NA (fka as Bank One, Akron, NA)
By: /s/ Xxxxx Xxxxxx
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Its: Assistant Vice President
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