1
Exhibit 10.84
FIFTH AMENDMENT AGREEMENT
THIS FIFTH AMENDMENT AGREEMENT ("Agreement") is made as of the 10 day
of March, 1999, by and between BANK ONE, NA (fka Bank One, Akron, NA)
("Lender"), LEXINGTON PRECISION CORPORATION, a Delaware corporation ("LPC"), and
LEXINGTON COMPONENTS, INC., a Delaware corporation ("LCI", hereinafter LPC and
LCI 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 of the Credit and Security Agreement is hereby amended to
add a new subpart K thereto as follows:
K. FACILITY 6: ADDITIONAL EQUIPMENT TERM LOAN.
1. ADDITIONAL EQUIPMENT TERM LOAN. On March 10, 1999,
Lender will make a term loan (the "Additional Equipment Term Loan") to
Borrowers in a principal amount not to exceed FIVE HUNDRED EIGHTY
THOUSAND AND NO/100 DOLLARS ($580,000.00). The Additional Equipment
Term Loan shall be subject to repayment in accordance with, and bear
interest as provided in, Section 2.K.2 of this Agreement and shall
otherwise be evidenced by, and repayable in accordance with, the
Additional Equipment Term Note.
2. PAYMENT TERMS OF ADDITIONAL EQUIPMENT TERM LOAN.
(a) INTEREST. The Additional Equipment Term Loan
shall bear interest on the unpaid principal balance until the
date paid in full at a rate per annum equal to one-quarter
percent (.25 %) in excess of the Base Rate (from time to time
in effect) on the unpaid principal amount, such interest being
payable monthly on the first day of each calendar month,
commencing on April 1, 1999 and continuing on the first
day of each
2
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 Additional Equipment Term
Note, the principal balance of the Additional Equipment Term
Loan shall be payable in eighty-three (83) consecutive equal
monthly installments of SIX THOUSAND NINE HUNDRED DOLLARS
($6,900.00) each, commencing on April 1, 1999 and continuing
on the first day of each calendar month thereafter and a final
installment in the amount of the then remaining outstanding
principal balance payable on March 1, 2006.
2. Section 2 of the Credit and Security Agreement is hereby amended to
add a new subpart L thereto as follows:
L. ADJUSTMENTS TO MAXIMUM LIABILITY. Anything in this Agreement to the
contrary notwithstanding, in no event shall the liability of LCI exceed the
maximum amount that, after giving effect to the incurring of the obligations
hereunder and to any rights to contribution of LCI from LPC or any other
affiliate of LPC, would not render Lender's rights to payment hereunder void,
voidable or avoidable under any applicable fraudulent transfer law.
3. The Credit and Security Agreement is hereby amended by deleting
Section 2.J thereof in its entirety and replacing it with the following:
J. SECURITY. As security for the prompt and complete payment
and performance when due of all the Obligations and in order to induce
Lender to enter into this Agreement and make the Loans and to extend
other credit from time to time to Borrower, whether under this
Agreement or otherwise,
(1) LPC hereby grants to Lender a first priority
security interest in (a) all of LPC's right, title, and
interest in and to the machinery, equipment and other items
listed on the Collateral Schedule, (b) all currently owned or
hereafter acquired accessories and parts for, all repairs,
modifications, improvements, upgrades, accessions and
attachments to, and all replacements and substitutions for,
any of the property described in subpart (a) hereof, and
(c) all Proceeds of the foregoing;
(2) LCI hereby grants to Lender a first priority
security interest in (a) all of LCI's right, title, and
interest in and to the machinery, equipment and other items
listed on the Collateral Schedule, (b) all currently owned or
hereafter acquired accessories and parts for, all repairs,
modifications, improvements, upgrades, accessions and
attachments to, and all replacements and substitutions for,
any of the property described in subpart (a) hereof, and
(c) all Proceeds of the foregoing; and
2
3
(3) LPC or LCI, as applicable, shall execute and
deliver an open-end mortgage, granting the Lender the first
and best lien on the North Canton Property, the Vienna
Property, the Casa Grande Property and the LaGrange Property,
subject only to Permitted Encumbrances.
4. The Credit and Security Agreement is hereby amended by deleting
subpart (1) from Section 5.B thereof in its entirety and replacing it with the
following:
(1) Sell, convey, transfer, exchange, lease or otherwise
relinquish possession or dispose of any of the Collateral or attempt or
offer to do any of the foregoing; provided, however, that Borrowers may
sell Collateral after obtaining the prior written consent of Lender;
5. The Credit and Security Agreement is hereby amended by deleting
subpart (6) from Section 5.B thereof in its entirety and replacing it with the
following:
(6) As to the Equipment and the North Canton Equipment, move
(or in the case of titled vehicles, change the principal base of) any
of the Equipment or North Canton Equipment from the North Canton
Property without the prior written consent of Lender; or
6. Rider A to the Credit and Security Agreement is hereby amended to
delete the definitions of "ADDITIONAL NORTH CANTON EQUIPMENT", "LOANS", "LPC
NORTH CANTON EQUIPMENT", "NORTH CANTON EQUIPMENT" and "NOTES" therefrom and to
insert in place of such definitions the following:
"ADDITIONAL NORTH CANTON EQUIPMENT": Specific machinery and
equipment of LCI and/or LPC consisting of: lathes, machining centers,
molding machines, grinders, ultrasonic cleaning tank, cabinets,
drilling machines, bandsaw, vacuum pump, lift truck, scrubber,
compressor/dryer, cutter grinder, computer, sweeper, vacuum tank, drill
sharpener, monitor, bowl feeders and loaders, and feeder bowls now
owned or hereafter acquired by LCI and/or LPC, as more particularly
described on the Collateral Schedule; all currently owned or hereafter
acquired accessories and parts for, and repairs, modifications,
improvements, upgrades, accessions and attachments to any of the
foregoing; and all replacements and substitutions for any of the
foregoing.
"LOANS": Collectively, the Additional Equipment Term Loan, the
Casa Grande Loan, the Casa Grande Construction Loans, the Casa Grande
Term Loan, the Equipment Term Loan, the North Canton Term Loan, the
Vienna Term Loan, the LaGrange Term Loan, the North Canton Equipment
Disbursement Loan and the North Canton Equipment Term Loan.
"LPC NORTH CANTON EQUIPMENT": Specific machinery and equipment
of LCI and/or LPC consisting of: lathes, transfer molding machines and
injection molding machines, now owned or hereafter acquired by LCI
and/or LPC, as more particularly described on the
3
4
Collateral Schedule; all currently owned or hereafter acquired
accessories and parts for, and repairs, modifications, improvements,
upgrades, accessions and attachments to any of the foregoing; and all
replacements and substitutions for any of the foregoing.
"NORTH CANTON EQUIPMENT": The LPC North Canton Equipment, the
Additional North Canton Equipment and the Other North Canton Equipment.
"NOTES": The Additional Equipment Term Note, the Equipment
Term Note, the North Canton Term Note, the Vienna Term Note, the Casa
Grande Note, the LaGrange Term Note, the North Canton Equipment Note
and any other promissory note or other instrument evidencing a
Borrower's obligation to repay any Obligations.
7. Rider A to the Credit and Security Agreement is hereby amended to
add the following new definitions thereto:
"ADDITIONAL EQUIPMENT TERM LOAN": As defined in Section 2.K.2
of this Agreement.
"ADDITIONAL EQUIPMENT TERM NOTE": The term promissory note to
be executed by Borrowers in the form attached as Exhibit L to this
Agreement (with such changes or modifications, if any, to which Lender
may agree) evidencing the Additional Equipment Term Loan made by Lender
pursuant to Section 2.K of this Agreement, together with all amendments
thereto and all promissory notes issued in substitution therefor or
replacement thereof.
"COLLATERAL SCHEDULE": The schedule entitled "Schedule of
Collateral to the Credit Facility and Security Agreement," which
Schedule of Collateral to the Credit Facility and Security Agreement is
incorporated herein by reference but is not attached hereto, and which
is dated as of March 10, 1999 and signed by LPC, LCI and Lender, and
each additional replacement to the foregoing schedule as may
hereinafter be executed by LPC, LCI and Lender, with the written
consent of Congress.
"OTHER NORTH CANTON EQUIPMENT": Specific machinery and
equipment of LCI and/or LPC consisting of the items set forth on the
Collateral Schedule, now owned or hereafter acquired by LCI and/or LPC;
all currently owned or hereafter acquired accessories and parts for,
and repairs, modifications, improvements, upgrades, accessions and
attachments to any of the foregoing; and all replacements and
substitutions for any of the foregoing.
8. The Credit and Security Agreement is hereby amended to add a new
Exhibit L thereto in the form of Exhibit L attached hereto.
9. Concurrently with the execution of this Agreement, or at such later
date as specifically provided below, Borrowers shall:
4
5
(a) deliver to Lender certified copies of the resolutions of the board
of directors of each Borrower evidencing approval of the execution of this
Agreement;
(b) execute and deliver to Lender such UCC financing statements as may
be required by Lender, subject to the provisions of Section 5.A(7) of the Credit
and Security Agreement;
(c) execute and deliver to Lender the Collateral Schedule;
(d) execute and deliver to Lender an Additional Equipment Term Note
dated as of March 10, 1999 and such Additional Equipment Term Note shall be in
the form of Exhibit L attached hereto;
(e) cause Congress to execute and deliver to Lender an amendment to the
Intercreditor Agreement, in form and substance satisfactory to Lender;
(f) within the later of thirty (30) days after the date of this
Agreement or receipt from Lender of the amendment, execute and deliver to Lender
an amendment to each of the Mortgages to reflect the additional borrowings by
Borrowers, in form and substance satisfactory to Lender; and
(g) pay all reasonable legal fees and expenses of Bank in connection
with this Agreement.
11. 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.
12. 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.
13. 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
5
6
and delivered shall be deemed to be an original and all of which taken together
shall constitute but one and the same agreement.
14. THIS AGREEMENT AND THE NOTE 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,
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 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. BORROWER
ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO
THIS AGREEMENT AND THE TRANSACTIONS EVIDENCED BY THIS AGREEMENT. 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
STARK OR THE UNITED STATES COURTS FOR THE NORTHERN DISTRICT OF OHIO, AS LENDER
MAY ELECT, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, 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. BORROWER AND LENDER ACKNOWLEDGE THAT JURY TRIALS OFTEN ENTAIL ADDITIONAL
EXPENSES AND DELAYS NOT OCCASIONED BY NON-JURY TRIALS. BORROWER 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, BORROWER 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 BORROWER AND LENDER HEREBY AGREE AND CONSENT THAT
BORROWER 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.
6
7
LEXINGTON PRECISION CORPORATION
By: Dennis J. Welhouse
--------------------------------
Name: Dennis J. Welhouse
Title: Senior Vice President and
Assistant Secretary
LEXINGTON COMPONENTS, INC.
By: Dennis J. Welhouse
--------------------------------
Name: Dennis J. Welhouse
Title: Senior Vice President and
Assistant Secretary
BANK ONE, NA (fka as Bank One, Akron, NA)
By Mark Corr
--------------------------------
Name: Mark Corr
Title: Assistant Vice President
7