Exhibit 10-218
AGREEMENT
(14% Junior Subordinated Notes)
This Agreement dated as of January 31, 2003 (the "Agreement"), between
Lexington Precision Corporation, a Delaware corporation (the "Company"), and
Xxxxxxx X. Xxxxx ("Holder").
WHEREAS, Holder is the holder of certain 14% Junior Subordinated Notes
due November 1, 2000, of the Company in the aggregate original principal amount
of the U.S. $346,666.67 (individually, a "Note" and collectively, the "Notes");
WHEREAS, the Company and Holder desire to, among other things, extend
the maturity date of the Notes, defer the payment of certain interest on the
Notes, and provide for the waiver of certain events of default, all on and
subject to the terms hereof;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto intending to be legally
bound, hereby agree as follows:
1. WAIVER. Subject to paragraph 2 hereof, the Holder hereby
waives any Event of Default under the Notes resulting solely from the failure of
the Company to pay any principal or interest due on (a) the Company's 12 3/4%
Senior Subordinated Notes due February 1, 2000, or (b) the Company's 10 1/2%
Senior Note due April 30, 2002 (the indebtedness referred to in clauses (a) and
(b) is referred to herein as the "Other Indebtedness").
2. RESCISSION OF WAIVERS. The waivers in paragraph 1 hereof shall
be automatically rescinded, without notice to the Company, in the event that the
holders of the Other Indebtedness, or the trustee in respect thereof, seeks to
enforce or exercise any remedies in respect thereof.
3. MODIFICATION OF NOTES.
Notwithstanding anything to the contrary in the Notes, the
Company and the Holder hereby agree that (a) the maturity date of the Notes is
extended to May 1, 2003, and (b) the interest on the Notes that is due and
payable on February 1, 2003 (the "November 2002 Interest Payment"), will be
deemed to be Defaulted Interest but will be payable on May 1, 2003.
4. EFFECTIVE DATE; APPLICABILITY; LEGEND.
This Agreement shall be deemed effective as of January 31,
2003. This Agreement shall modify each Note and any replacement note issued upon
transfer of, in exchange for, or in lieu of any Note or any replacement note.
Holder agrees that Holder will cause the following legend to be placed
prominently on each Note and that any replacement note or notes issued by the
Company upon transfer of, in exchange for, or in lieu of the Note or any
replacement note shall have such legend placed thereon:
THIS NOTE HAS BEEN MODIFIED PURSUANT TO THOSE CERTAIN
AGREEMENTS DATED AS OF JANUARY 31, 2000, APRIL 30, 2000, JULY 31, 2000,
OCTOBER 31, 2000, JANUARY 31, 2001, APRIL 30, 2001, JULY 31, 2001,
OCTOBER 31, 2001, JANUARY 31, 2002, APRIL 30, 2002, JUNE 30, 2002,
OCTOBER 31, 2002, AND JANUARY 31, 2003, COPIES OF WHICH ARE AVAILABLE
FOR INSPECTION AT THE OFFICES OF THE COMPANY AT 000 XXXXX XXXXXX, 00XX
XXXXX, XXX XXXX, XXX XXXX, AND REFERENCE SHOULD BE MADE THERETO FOR THE
TERMS THEREOF.
5. REPRESENTATIONS AND WARRANTIES. Each of the parties represents
and warrants that: (a) the execution, delivery and performance of this Agreement
have been duly authorized by all requisite action on his or its part; and (b)
this Agreement has been duly executed and delivered by him or it and constitutes
his or its legal, valid, and binding agreement, enforceable against him or it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforceability of creditors' rights generally or general equitable
principles.
6. NO OTHER AMENDMENTS.
Except as expressly amended, waived, modified, and
supplemented hereby, each Note shall remain in full force and effect in
accordance with its terms. Without limiting the generality of the foregoing,
except as set forth in Section 1, 2 or 3 of this Agreement, nothing herein shall
constitute a waiver of any rights or remedies of the Holder upon the occurrence
of any Event of Default.
7. GENERAL PROVISIONS.
(a) DEFINED TERMS. Capitalized terms used herein, unless
otherwise defined herein, shall have the meaning ascribed thereto in the Notes.
(b) COUNTERPARTS. This Agreement may be executed by the
parties in any number of counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. This
Amendment may be signed by facsimile transmission of the relevant signature
pages hereof.
(c) GOVERNING LAW. This Agreement shall be governed by, and
construed and interpreted in accordance with, the internal laws of the State of
New York.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the heirs, successors, and assigns of the
parties hereto and any and all transferees and holders of the Notes or any
replacement note.
(e) HEADINGS. The paragraph headings of this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement.
IN WITNESS WHEREOF, the Company and Holder have caused this
Agreement to be duly executed and delivered as of the date first written above.
LEXINGTON PRECISION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Chairman of the Board
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/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
