Exhibit 10-4
DRAFT OF 4/17/02
SIXTH AMENDMENT AGREEMENT
THIS SIXTH AMENDMENT AGREEMENT ("Agreement") is made as of the ___ day
of April, 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 add a new facility thereunder and to modify certain other
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)(a) and Section 2(B)(2)(b) are hereby amended by
deleting them in their entirety and by inserting in place thereof the following:
(a) INTEREST. The North Canton Term Loan shall bear
interest at a rate on the unpaid principal balance until the
date paid in full at a rate per annum equal to the Base Rate
plus three-fourths of one percent (3/4%), such interest being
payable monthly on the first day of each calendar month,
commencing May 1, 2002 and continuing on the first day of each
calendar month thereafter. Interest shall be computed on a
three hundred sixty (360)-day year basis based upon the actual
number of days elapsed.
(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) consecutive, equal monthly installments of
ELEVEN THOUSAND ONE HUNDRED ELEVEN AND 11/100 DOLLARS
($11,111.11) each, commencing on May 1, 2002 and continuing on
the first day of each calendar month thereafter with the
balance thereof payable in full on July 1, 2002.
2. Section 2(C)(2)(a) and Section 2(C)(2)(b) are hereby amended by
deleting them in their entirety and by inserting in place thereof the following:
(a) INTEREST. The Vienna Term Loan shall bear
interest at a rate on the unpaid principal balance until the
date paid in full at a rate per annum equal to the Base Rate
plus three-fourths of one percent (3/4%), such interest being
payable monthly commencing May 1, 2002 and continuing on the
first day of each calendar month thereafter. Interest shall be
computed on a three hundred sixty (360)-day year basis based
upon the actual number of days elapsed.
(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) consecutive, equal monthly installments of EIGHT
THOUSAND THREE HUNDRED THIRTY THREE AND 33/100 DOLLARS
($8,333.33) each, commencing on May 1, 2002 and continuing on
the first day of each calendar month thereafter with the
balance thereof payable in full on July 1, 2002.
3. Section 2(D)(2) is hereby amended by deleting it in its entirety and
by inserting in place thereof the following:
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) consecutive, equal monthly principal
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 each such installment of principal, commencing
on May 1, 2002 and continuing on the first day of each calendar month
thereafter with the balance thereof payable in full on July 1, 2002..
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 monthly commencing on
May 1, 2002 and continuing on the first day of each calendar month
thereafter. 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)(a) and Section 2(E)(2)(b) are hereby amended by
deleting them in their entirety and by inserting in place thereof the following:
(a) INTEREST. The LaGrange Term Loan shall bear
interest at a rate on the unpaid principal balance until the
date paid in full at a rate per annum equal to the Base Rate
plus three-fourths of one percent (3/4%), such interest being
payable monthly commencing on May 1, 2002 and continuing on
the first day of each calendar month thereafter. Interest
2
shall be computed on a three hundred sixty (360)-day year
basis based upon the actual number of days elapsed.
(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) consecutive, equal monthly installments of EIGHT
THOUSAND EIGHT HUNDRED EIGHTY-EIGHT AND 89/100 DOLLARS
($8,888.89) each, commencing on May 1, 2002 and continuing on
the first day of each calendar month thereafter with the
balance thereof payable in full on July 1, 2002.
5. Section 2(A) of Rider A is hereby amended by deleting it in its
entirety and by inserting in place thereof the following:
A. Maintain on a basis consolidated with LPC's direct and indirect
subsidiaries at all times a Tangible Net Worth equal to or greater than
SEVEN MILLION AND 00/100 DOLLARS ($7,000,000).
6. As a condition precedent to the effectiveness of this Agreement,
Borrowers shall:
(a) pay all reasonable legal fees and expenses of Lender incurred in
connection with this Agreement;
(b) execute and deliver to Lender a Promissory Note (North Canton Term
Loan), dated of even date herewith, and such Promissory Note shall be in the
form and substance of EXHIBIT 1 attached hereto;
(c) execute and deliver to Lender a Promissory Note (Vienna Term Loan),
dated of even date herewith, and such Promissory Note shall be in the form and
substance of EXHIBIT 2 attached hereto;
(d) execute and deliver to Lender a Promissory Note (Casa Grande Term
Note), dated of even date herewith, and such Promissory Note shall be in the
form and substance of EXHIBIT 3 attached hereto;
(e) execute and deliver to Lender a Promissory Note (LaGrange Term
Loan), dated of even date herewith, and such Revolving Loan Note shall be in the
form and substance of EXHIBIT 4 attached hereto; and
(f) pay to Lender an amendment fee in the amount of Two Thousand
Dollars ($2,000).
7. The Loan Agreement is hereby amended by deleting Exhibit C in its
entirety and by inserting in place thereof EXHIBIT 1 attached hereto.
8. The Loan Agreement is hereby amended by deleting Exhibit E in its
entirety and by inserting in place thereof EXHIBIT 2 attached hereto.
3
9. The Loan Agreement is hereby amended by deleting Exhibit F in its
entirety and by inserting in place thereof EXHIBIT 3 attached hereto.
10. The Loan Agreement is hereby amended by deleting Exhibit H in its
entirety and by inserting in place thereof EXHIBIT 4 attached hereto.
11. Lender hereby waives Borrowers' failure to comply with the covenant
contained in Section 2(A) of Rider A for the fiscal year ended December 31,
2001. The waiver of the aforementioned provision shall not operate as a waiver
of any right, power or remedy of Lender under the Credit and Security Agreement,
nor constitute a waiver of any provision of the Credit and Security Agreement,
except as set forth herein.
12. 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.
13. 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.
14. 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.
15. 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
4
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 ▇▇▇▇▇ 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 EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
LEXINGTON PRECISION CORPORATION
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Its: Chairman of the Board
-------------------------------
LEXINGTON RUBBER GROUP, INC.
(FKA LEXINGTON COMPONENTS, INC.)
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Its: Chairman of the Board
-------------------------------
5
BANK ONE, NA (fka as Bank One, Akron, NA)
By: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Its: Assistant Vice President
-------------------------------
6
EXHIBIT 1
EXHIBIT C
PROMISSORY NOTE
(North Canton Term Loan)
$1,244,444.52 New York, New York
April 1, 2002
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a corporation
organized under the laws of the State of Delaware ("LPC") and LEXINGTON RUBBER
GROUP, INC. (FKA LEXINGTON COMPONENTS, INC.), a corporation organized and
existing under the laws of the State of Delaware ("LRG") (hereinafter LPC and
LRG are referred to each as Borrower singularly and referred to jointly and
severally as the "Borrowers," which term shall mean each of the companies
individually and both of them collectively), jointly and severally promise to
pay to the order of BANK ONE, NA (fka Bank One, Akron, NA) (hereinafter referred
to as the "Bank"), the principal amount of ONE MILLION TWO HUNDRED FORTY-FOUR
THOUSAND FOUR HUNDRED FORTY-FOUR AND 52/100 DOLLARS ($1,244,444.52) pursuant to
the repayment terms and dates set forth in Section 2(B)(2)(b) of the Agreement
(as defined below), with interest on the unpaid balance of said principal amount
from the date hereof at a rate per annum equal to the Base Rate (as defined in
the Agreement) plus three-fourths of one percent (3/4%). If any installment of
principal, interest or other amounts due and payable hereunder are not paid when
due, or within any applicable grace periods set forth in the Agreement, the
Borrowers shall pay interest thereon at the rate of three percent (3.0%) per
annum in excess of the Base Rate, as defined in the Agreement hereinafter
referred to, as the same may from time to time be established but not to exceed
the maximum rate allowed by law. Bank shall have the right to assess a late
payment processing fee in the amount of the greater of FIFTY AND NO/100 DOLLARS
($50.00) or five percent (5%) of the scheduled payment in the event of a default
in payment that remains uncured for a period of at least ten (10) days.
The Borrowers agree to pay the principal amount of this Note pursuant
to the repayment terms and dates set forth in Section 2(B)(2)(b) of the
Agreement. Monthly payments hereunder shall be applied first to interest due and
the balance to reduction of the principal amount outstanding.
Payments of both principal of and interest on this Note shall be made
in lawful money of the United States of America, at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as the Bank or any subsequent holder
hereof shall have designated to the Borrowers in writing. Interest payable on
this Note shall be computed on a three hundred sixty (360) day per year basis
counting the actual number of days elapsed. If any payment under this Note
becomes due and payable on a day which is not a Business Day (as defined in this
Agreement), payment thereof shall be made on the immediately succeeding Business
Day.
7
This Note is issued pursuant to and is entitled to the benefits of a
Credit Facility and Security Agreement dated as of January 31, 1997, by and
among the Borrowers and the Bank (as amended, the "Agreement"), to which
Agreement reference is hereby made for a statement of the rights and obligations
of the Bank and the duties and obligations of the Borrowers in relation thereto;
but neither this reference to said Agreement nor any provisions thereof shall
affect or impair the absolute and unconditional obligation of the Borrowers to
pay the principal of or interest on this Note when due.
The Borrowers may prepay all or any portion of this Note at any time
and in any amount without penalty or premium, provided that all prepayments
shall be applied to installments of principal in the inverse order of their
maturities.
If an Event of Default, as defined in said Agreement, shall occur and
shall be continuing, the principal of this Note may be declared immediately due
and payable at the option, of the Bank.
In the event that the Borrowers fail to pay any regularly scheduled
principal or interest payment on this Note when due (other than as a result of
acceleration thereof based on a default or event of default other than the
failure to make any such regularly scheduled payments of principal or interest
on the Note when due) which failure is not cured within the ten (10) day cure
period provided in Section 6A of the Agreement (a "Payment Default"), or if an
Event of Default occurs and is continuing, which arises from fraudulent act(s)
or practice(s) of either Borrower which Event of Default is not cured within
three (3) Business Days after the Borrowers' receipt of written notice thereof
from the Bank (a "Fraud Default"), the Borrowers hereby authorize any
attorney-at-law to appear in any court of record in the State of Ohio, or in any
other state or territory of the United States, at any time or times after the
above sum becomes due, and waive the issuance and service of process and confess
judgment against it, in favor of any holder of this Note, for the amount then
appearing due, together with the costs of suit, and thereupon to release all
errors and waive all rights of appeal and stay of execution. The foregoing
warrant of attorney shall survive any judgment, it being understood that should
any judgment be vacated for any reason, the foregoing warrant of attorney
nevertheless may thereafter be used for obtaining an additional judgment or
judgments. To the extent that the provisions of the cognovit warning set forth
above the Borrowers signature specifically contradict the provisions of this
paragraph regarding the requirement of a Payment Default or a Fraud Default to
take a cognovit judgment, the provisions of this paragraph control.
No delay on the part of any holder hereof in exercising any power or
rights hereunder shall operate as a waiver of any power or rights. Any demand or
notice hereunder to the Borrowers shall be deemed duly given or made when sent,
if given by telecopier, when delivered, if given by personal delivery or
overnight commercial carrier, or the fifth calendar day after deposit in the
United States mail, certified mail, return receipt requested, addressed to the
address (or telecopier number) set forth in Rider A of the Agreement or such
other address or telecopier number as may be hereafter designated in writing by
the Borrowers to the Bank.
8
This note is executed at New York, New York County, New York.
-------------------------------------------------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR,
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
-------------------------------------------------------------------------------
LEXINGTON PRECISION CORPORATION
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its: Chairman of the Board
-----------------------------
LEXINGTON RUBBER GROUP, INC.
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Its: Chairman of the Board
-----------------------------
9
EXHIBIT 2
EXHIBIT E
PROMISSORY NOTE
(Vienna Term Loan)
$898,200.24 New York, New York
April 1, 2002
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a corporation
organized under the laws of the State of Delaware ("LPC") and LEXINGTON RUBBER
GROUP, INC. (FKA LEXINGTON COMPONENTS, INC.), a corporation organized and
existing under the laws of the State of Delaware ("LRG") (hereinafter LPC and
LRG are referred to each as Borrower singularly and referred to jointly and
severally as the "Borrowers," which term shall mean each of the companies
individually and both of them collectively), jointly and severally promise to
pay to the order of BANK ONE, NA (fka Bank One, Akron, NA) (hereinafter referred
to as the "Bank"), the principal amount of EIGHT HUNDRED NINETY-EIGHT THOUSAND
TWO HUNDRED AND 24/100 DOLLARS ($898,200.24), pursuant to the repayment terms
and dates set forth in Section 2(C)(2)(b) of the Agreement (as defined below),
or sooner as hereinafter provided, with interest on the unpaid balance of said
principal amount from the date hereof at a rate per annum equal to the Base Rate
(as defined in the Agreement) plus three-fourths of one percent (3/4%). If any
installment of principal, interest or other amounts due and payable hereunder
are not paid when due, or within any applicable grace periods set forth in the
Agreement, the Borrowers shall pay interest thereon at the rate of three percent
(3.0%) per annum in excess of the Base Rate (as defined in the Agreement) as the
same may from time to time be established but not to exceed the maximum rate
allowed by law. Bank shall have the right to assess a late payment processing
fee in the amount of the greater of FIFTY AND NO/100 DOLLARS ($50.00) or five
percent (5%) of the scheduled payment in the event of a default in payment that
remains uncured for a period of at least ten (10) days.
The Borrowers agree to pay the principal amount of this Note pursuant
to the repayment terms and dates set forth in Section 2(B)(2)(b) of the
Agreement. Monthly payments hereunder shall be applied first to interest due and
the balance to reduction of the principal amount outstanding.
Payments of both principal of and interest on this Note shall be made
in lawful money of the United States of America, at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as the Bank or any subsequent holder
hereof shall have designated to the Borrowers in writing. Interest payable on
this Note shall be computed on a three hundred sixty (360) day per year basis
counting the actual number of days elapsed. If any payment under this Note
becomes due and payable on a day which is not a Business Day (as defined in this
Agreement), payment thereof shall be made on the immediately succeeding Business
Day.
10
This Note is issued pursuant to and is entitled to the benefits of a
Credit Facility and Security Agreement dated January 31, 1997, by and among the
Borrowers and the Bank (as amended, the "Agreement"), to which Agreement
reference is hereby made for a statement of the rights and obligations of the
Bank and the duties and obligations of the Borrowers in relation thereto; but
neither this reference to said Agreement nor any provisions thereof shall affect
or impair the absolute and unconditional obligation of the Borrowers to pay the
principal of or interest on this Note when due.
The Borrowers may prepay all or any portion of this Note at any time
and in any amount without penalty or premium, provided that all prepayments
shall be applied to installments of principal in the inverse order of their
maturities.
If an Event of Default (as defined in the Agreement), shall occur and
shall be continuing, the principal of this Note may be declared immediately due
and payable at the option of the Bank.
In the event that the Borrowers fail to pay any regularly scheduled
principal or interest payment on this Note when due (other than as a result of
acceleration thereof based on a default or event of default other than the
failure to make any such regularly scheduled payments of principal or interest
on the Note when due) which failure is not cured within the ten (10) day cure
period provided in Section 6A of the Agreement (a "Payment Default"), or if an
Event of Default occurs and is continuing, which arises from fraudulent act(s)
or practice(s) of either Borrower which Event of Default is not cured within
three (3) Business Days after the Borrowers' receipt of written notice thereof
from the Bank (a "Fraud Default"), the Borrowers hereby authorize any
attorney-at-law to appear in any court of record in the State of Ohio, or in any
other state or territory of the United States, at any time or times after the
above sum becomes due, and waive the issuance and service of process and confess
judgment against it, in favor of any holder of this Note, for the amount then
appearing due, together with the costs of suit, and thereupon to release all
errors and waive all rights of appeal and stay of execution. The foregoing
warrant of attorney shall survive any judgment, it being understood that should
any judgment be vacated for any reason, the foregoing warrant of attorney
nevertheless may thereafter be used for obtaining an additional judgment or
judgments. To the extent that the provisions of the cognovit warning set forth
above the Borrowers' signature specifically contradict the provisions of this
paragraph regarding the requirement of a Payment Default or a Fraud Default to
take a cognovit judgment, the provisions of this paragraph control.
No delay on the part of any holder hereof in exercising any power or
rights hereunder shall operate as a waiver of any power or rights. Any demand or
notice hereunder to the Company shall be deemed duly given or made when sent, if
given by telecopier, when delivered, if given by personal delivery or overnight
commercial carrier, or the fifth calendar day after deposit in the United States
mail, certified mail, return receipt requested, addressed to the address (or
telecopier number) set forth in Rider A of the Agreement or such other address
or telecopier number as may be hereafter designated in writing by the Borrowers
to the Bank.
11
This note is executed at New York, New York County, New York.
--------------------------------------------------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR,
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
LEXINGTON PRECISION CORPORATION
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Its: Chairman of the Board
----------------------------
LEXINGTON RUBBER GROUP, INC.
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Its: Chairman of the Board
----------------------------
12
EXHIBIT 3
EXHIBIT F
PROMISSORY NOTE
(Casa Grande Note)
$2,061,452.32 New York, New York
April 1, 2002
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a corporation
organized under the laws of the State of Delaware ("LPC") and LEXINGTON RUBBER
GROUP, INC. (FKA LEXINGTON COMPONENTS, INC.), a corporation organized and
existing under the laws of the State of Delaware ("LRG") (hereinafter LPC and
LRG are referred to each as Borrower singularly and referred to jointly and
severally as the "Borrowers," which term shall mean each of the companies
individually and both of them collectively), jointly and severally promise to
pay to the order of BANK ONE, NA (fka Bank One, Akron, NA) (hereinafter referred
to as the "Bank"), the principal amount of TWO MILLION SIXTY-ONE THOUSAND FOUR
HUNDRED FIFTY-TWO AND 32/100 DOLLARS ($2,061,452.32), pursuant to the repayment
terms and dates set forth in Section 2(D)(2) of the Agreement (as defined
below), with interest on the unpaid principal balance from the date hereof at a
rate per annum equal to The Base Rate (as defined in the Agreement) plus
three-fourths of one percent (3/4%) as follows: Interest on the Casa Grande Term
Loan is payable monthly commencing on May 1, 2002 and continuing on the first
day of each calendar month thereafter. Interest shall be computed on a three
hundred sixty (360) day basis based upon the actual number of days elapsed.
If any installment of principal, interest or other amounts due and
payable hereunder are not paid when due, or within any applicable grace periods
set forth in the Agreement, the Borrowers shall pay interest thereon at the
Default Rate (as defined in the Agreement). Bank shall have the right to assess
a late payment processing fee in the amount of the greater of FIFTY AND NO/100
DOLLARS ($50.00) or five percent (5%) of the scheduled payment in the event of a
default in payment that remains uncured for a period of at least ten (10) days.
The Borrowers agree to pay the principal amount of this Note pursuant
to the repayment terms and dates set forth in Section 2(B)(2)(b) of the
Agreement. Monthly payments hereunder shall be applied first to interest due and
the balance to reduction of the principal amount outstanding.
Payments of both principal of and interest on this Note shall be made
in lawful money of the United States of America, at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as the Bank or any subsequent holder
hereof shall have designated to the Borrowers in writing. Interest payable on
this Note shall be computed on a three hundred sixty (360) day per year basis
counting the actual number of days elapsed. If any payment under this Note
becomes
13
due and payable on a day which is not a Business Day (as defined in this
Agreement), payment thereof shall be made on the immediately succeeding Business
Day.
This Note is issued pursuant to and is entitled to the benefits of a
Credit Facility and Security Agreement dated January 31, 1997, by and among the
Borrowers and the Bank (as amended, the "Agreement"), to which Agreement
reference is hereby made for a statement of the rights and obligations of the
Bank and the duties and obligations of the Borrowers in relation thereto; but
neither this reference to said Agreement nor any provisions thereof shall affect
or impair the absolute and unconditional obligation of the Borrowers to pay the
principal of or interest on this Note when due. This Note evidences the
obligations of Borrowers in respect of the Casa Grande Construction Loans and
the Casa Grande Term Loan.
The Borrowers may prepay all or any portion of this Note at any time
and in any amount without penalty or premium, provided that all prepayments
shall be applied to installments of principal in the inverse order of their
maturities.
If an Event of Default (as defined in the Agreement), shall occur and
shall be continuing, the principal of this Note may be declared immediately due
and payable at the option of the Bank.
In the event that the Borrowers fail to pay any regularly scheduled
principal or interest payment on this Note when due (other than as a result of
acceleration thereof based on a default or event of default other than the
failure to make any such regularly scheduled payments of principal or interest
on the Note when due) which failure is not cured within the ten (10) day cure
period provided in Section 6A of the Agreement (a "Payment Default"), or if an
Event of Default occurs and is continuing, which arises from fraudulent act(s)
or practice(s) of either Borrower which Event of Default is not cured within
three (3) Business Days after the Borrowers' receipt of written notice thereof
from the Bank (a "Fraud Default"), the Borrowers hereby authorize any
attorney-at-law to appear in any court of record in the State of Ohio, or in any
other state or territory of the United States, at any time or times after the
above sum becomes due, and waive the issuance and service of process and confess
judgment against it, in favor of any holder of this Note, for the amount then
appearing due, together with the costs of suit, and thereupon to release all
errors and waive all rights of appeal and stay of execution. The foregoing
warrant of attorney shall survive any judgment, it being understood that should
any judgment be vacated for any reason, the foregoing warrant of attorney
nevertheless may thereafter be used for obtaining an additional judgment or
judgments. To the extent that the provisions of the cognovit warning set forth
above the Borrowers' signature specifically contradict the provisions of this
paragraph regarding the requirement of a Payment Default or a Fraud Default to
take a cognovit judgment, the provisions of this paragraph control.
No delay on the part of any holder hereof in exercising any power or
rights hereunder shall operate as a waiver of any power or rights. Any demand or
notice hereunder to the Borrowers shall be deemed duly given or made when sent,
if given by telecopier, when delivered, if given by personal delivery or
overnight commercial carrier, or the fifth calendar day after deposit in the
United States mail, certified mail, return receipt requested, addressed to the
address (or telecopier number) set forth in Rider A of the Agreement or such
other address or telecopier number as may be hereafter designated in writing by
the Borrowers to the Bank.
14
This note is executed at New York, New York County, New York.
--------------------------------------------------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR,
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
LEXINGTON PRECISION CORPORATION
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: Chairman of the Board
------------------------------
LEXINGTON RUBBER GROUP, INC.
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: Chairman of the Board
------------------------------
15
EXHIBIT 4
EXHIBIT H
PROMISSORY NOTE
(LaGrange Term Loan)
$1,048,888.82 New York, New York
April 1, 2002
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a corporation
organized under the laws of the State of Delaware ("LPC") and LEXINGTON RUBBER
GROUP, INC. (FKA LEXINGTON COMPONENTS, INC.),, a corporation organized and
existing under the laws of the State of Delaware ("LRG") (hereinafter LPC and
LRG are referred to each as Borrower singularly and referred to jointly and
severally as the "Borrowers," which term shall mean each of the companies
individually and both of them collectively), jointly and severally promise to
pay to the order of BANK ONE, NA (fka Bank One, Akron, NA) (hereinafter referred
to as the "Bank"), the principal amount of ONE MILLION FORTY-EIGHT THOUSAND
EIGHT HUNDRED EIGHTY-EIGHT AND 82/100 DOLLARS ($1,048,888.82), pursuant to the
repayment terms and dates set forth in Section 2(e)(2)(b) of the Agreement (as
defined below), or sooner as hereinafter provided, with interest on the unpaid
balance of said principal amount from the date hereof at a rate per annum equal
to the Base Rate (as defined in the Agreement) plus three-fourths of one percent
(3/4%). If any installment of principal, interest or other amounts due and
payable hereunder are not paid when due, or within any applicable grace periods
set forth in the Agreement, the Borrowers shall pay interest thereon at the
Default Rate (as defined in the Agreement). Bank shall have the right to assess
a late payment processing fee in the amount of the greater of FIFTY AND NO/100
DOLLARS ($50.00) or five percent (5%) of the scheduled payment in the event of a
default in payment that remains uncured for a period of at least ten (10) days.
The Borrowers agree to pay the principal amount of this Note pursuant
to the repayment terms and dates set forth in Section 2(B)(2)(b) of the
Agreement. Monthly payments hereunder shall be applied first to interest due and
the balance to reduction of the principal amount outstanding.
Payments of both principal of and interest on this Note shall be made
in lawful money of the United States of America, at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or at such other place as the Bank or any subsequent holder
hereof shall have designated to the Borrowers in writing. Interest payable on
this Note shall be computed on a three hundred sixty (360) day per year basis
counting the actual number of days elapsed. If any payment under this Note
becomes due and payable on a day which is not a Business Day (as defined in this
Agreement), payment thereof shall be made on the immediately succeeding Business
Day.
This Note is issued pursuant to and is entitled to the benefits of a
Credit Facility and Security Agreement dated January 31, 1997, by and among the
Borrowers and the Bank (as
16
amended, the "Agreement"), to which Agreement reference is hereby made for a
statement of the rights and obligations of the Bank and the duties and
obligations of the Borrowers in relation thereto; but neither this reference to
said Agreement nor any provisions thereof shall affect or impair the absolute
and unconditional obligation of the Borrowers to pay the principal of or
interest on this Note when due.
The Borrowers may prepay all or any portion of this Note at any time
and in any amount without penalty or premium, provided that all prepayments
shall be applied to installments of principal in the inverse order of their
maturities.
If an Event of Default (as defined in the Agreement), shall occur and
shall be continuing, the principal of this Note may be declared immediately due
and payable at the option of the Bank.
In the event that the Borrowers fail to pay any regularly scheduled
principal or interest payment on this Note when due (other than as a result of
acceleration thereof based on a default or event of default other than the
failure to make any such regularly scheduled payments of principal or interest
on the Note when due) which failure is not cured within the ten (10) day cure
period provided in Section 6A of the Agreement (a "Payment Default"), or if an
Event of Default occurs and is continuing, which arises from fraudulent act(s)
or practice(s) of either Borrower which Event of Default is not cured within
three (3) Business Days after the Borrowers' receipt of written notice thereof
from the Bank (a "Fraud Default"), the Borrowers hereby authorize any
attorney-at-law to appear in any court of record in the State of Ohio, or in any
other state or territory of the United States, at any time or times after the
above sum becomes due, and waive the issuance and service of process and confess
judgment against it, in favor of any holder of this Note, for the amount then
appearing due, together with the costs of suit, and thereupon to release all
errors and waive all rights of appeal and stay of execution. The foregoing
warrant of attorney shall survive any judgment, it being understood that should
any judgment be vacated for any reason, the foregoing warrant of attorney
nevertheless may thereafter be used for obtaining an additional judgment or
judgments. To the extent that the provisions of the cognovit warning set forth
above the Borrowers' signature specifically contradict the provisions of this
paragraph regarding the requirement of a Payment Default or a Fraud Default to
take a cognovit judgment, the provisions of this paragraph control.
No delay on the part of any holder hereof in exercising any power or
rights hereunder shall operate as a waiver of any power or rights. Any demand or
notice hereunder to the Borrower shall be deemed duly given or made when sent,
if given by telecopier, when delivered, if given by personal delivery or
overnight commercial carrier, or the fifth calendar day after deposit in the
United States mail, certified mail, return receipt requested, addressed to the
address (or telecopier number) set forth in Rider A of the Agreement or such
other address or telecopier number as may be hereafter designated in writing by
the Borrowers to the Bank.
17
This note is executed at New York, New York County, New York.
--------------------------------------------------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR,
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
LEXINGTON PRECISION CORPORATION
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: Chairman of the Board
------------------------------
LEXINGTON RUBBER GROUP, INC.
("Borrower")
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: Chairman of the Board
------------------------------
18