Exhibit 10-6
July 9, 2003
Lexington Precision Corporation
767 Third Avenue
New York, New York 10017
Re: Amendment to Financing Agreements
Gentlemen:
Reference is made to certain financing agreements dated January 11, 1990
between Lexington Precision Corporation ("LPC") and Congress Financial
Corporation ("Congress"), including, but not limited to, an Accounts Financing
Agreement [Security Agreement], as amended (the "Accounts Agreement"), and all
supplements thereto and all other related financing and security agreements
(collectively, all of the foregoing, as the same have heretofore or
contemporaneously been or may be hereafter, amended, replaced, extended,
modified or supplemented, the "Financing Agreements").
In connection with the financing arrangements pursuant to the Accounts
Agreement and the other Financing Agreements, the parties hereto hereby agree to
amend the Financing Agreements, as set forth below:
1. Definitions. Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings ascribed thereto in the Accounts Agreement and
the other Financing Agreements.
2. Net Worth. Section IV(g)(ii) of the Covenant Supplement to the
Accounts Agreement is hereby deleted in its entirety and the following
substituted therefor:
"(ii) Borrower shall, at all times, maintain on a basis
consolidated with Borrower's direct and indirect Subsidiaries, a
Net Worth not less than negative $14,500,000 (-$14,500,000)."
3. Term. The first sentence of Section 9.1 of the Accounts Agreement, as
heretofore amended, is hereby deleted in its entirety and replaced with the
following:
"This Agreement shall become effective upon acceptance by you
and shall continue in full force and effect for a term ending August 11,
2003 (the "Renewal Date"), unless sooner terminated pursuant to the
terms hereof."
4. Interest Rate. Notwithstanding anything to the contrary contained in
any of the Financing Agreements and without limiting any other rights or
remedies of Congress pursuant to the Financing Agreements, in the event that all
Obligations have not been indefeasibly paid in full in cash or other immediately
funds by August 11, 2003, the Interest Rate on the outstanding Obligations shall
be increased to a rate of two (2%) percent per annum in excess of the Prime Rate
as to Prime Rate Loans effective as of August 11, 2003.
5. Waiver of Event of Default.
(a) Subject to the terms and conditions set forth herein,
Congress hereby waives the Event of Default arising under the Financing
Agreements as a result of the failure of LPC and its direct and indirect
Subsidiaries, on a consolidated basis, to maintain the minimum Net Worth as
required under Section IV(g)(ii) of the Covenant Supplement to the Accounts
Agreement as of May 31, 2003.
(b) Congress has not waived, is not by this Amendment waiving,
and has no intention of waiving any Event of Default which may have occurred on
or prior to the date hereof, whether or not continuing on the date hereof, or
which may occur after the date hereof (whether the same or similar to the Event
of Default referred to above or otherwise), other than the Event of Default
specifically referred to above (subject to the terms and conditions set forth
herein). The foregoing waiver shall not be construed as a bar to or a waiver of
any other or further Event of Default on any future occasion, whether similar in
kind or otherwise and shall not constitute a waiver, express or implied, of any
of the rights and remedies of Congress arising under the terms of the Accounts
Agreement or any other Financing Agreements on any future occasion or otherwise.
6. Amendment Fee. In consideration of the amendments set forth herein,
LPC shall on the date hereof, pay to Congress or Congress, at its option, may
charge the account of LPC maintained by Congress, an amendment fee in the amount
of $30,000 (less the amount of any amendment fee paid by LRG to Congress
pursuant to the letter agreement re: Amendment to Financing Agreements, dated of
even date herewith, by and between Congress and LRG), which fee is fully earned
as of the date hereof and shall constitute part of the Obligations.
7. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by LPC to Congress pursuant to the Financing Agreements, LPC hereby
represents, warrants and covenants with and to Congress as follows (which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof and shall be incorporated into and made a part of
the Financing Agreements):
(a) No Event of Default exists or has occurred and is continuing
on the date of this Amendment (after giving effect to the provisions of this
Amendment).
(b) This Amendment has been duly executed and delivered by LPC
and is in full force and effect as of the date hereof, and the agreements and
obligations of LPC contained herein
-2-
constitute the legal, valid and binding obligations of LPC enforceable against
LPC in accordance with their terms.
8. Conditions to Effectiveness of Amendment. Anything contained in this
Amendment to the contrary notwithstanding, the terms and provisions of this
Amendment shall only become effective upon the satisfaction of the following
additional conditions precedent:
(a) each of Congress and LPC shall have received an executed
original or executed original counterparts (as the case may be) of this
Amendment and an executed copy of the Agreement, dated as of July 9, 2003,
attached hereto as Exhibit A, together with an Amendment between LRG and
Congress dated of even date herewith with respect to the LRG Financing
Agreements and the documents and instruments required thereunder (if any) and
the satisfaction of all conditions precedent to the effectiveness thereof, which
shall be in form and substance satisfactory to Congress;
(b) all representations and warranties contained herein, in the
Accounts Agreement and in the other Financing Agreements shall be true and
correct in all material respects; and
(c) no Event of Default shall have occurred and no event shall
have occurred or condition be existing which, with notice or passage of time or
both, would constitute an Event of Default (after giving effect to the
provisions of this Amendment).
9. Effect of this Amendment. Except as modified pursuant hereto, the
Accounts Agreement and all supplements to the Accounts Agreement and all other
Financing Agreements, are hereby specifically ratified, restated and confirmed
by the parties hereto as of the date hereof and no existing defaults or Events
of Default have been waived in connection herewith other than as specifically
set forth in Section 5 hereof. To the extent of conflict between the terms of
this Amendment and the Accounts Agreement or any of the other Financing
Agreements, the terms of this Amendment control.
10. Further Assurances. LPC shall execute and deliver such additional
documents and take such additional actions as may reasonably be requested by
Congress to effectuate the provisions and purposes of this Amendment.
11. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without reference to its
principles of conflicts of law.
12. Counterparts. Delivery of an executed counterpart of this Amendment
by telefacsimile shall have the same force and effect as delivery of an original
executed counterpart of this Amendment.
-3-
By the signatures hereto of the duly authorized officers, the parties
hereto mutually covenant, warrant and agree as set forth herein.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
By: /s/ Herbert C. Korn
--------------------------------
Title: Vice President
--------------------------------
AGREED AND ACCEPTED:
LEXINGTON PRECISION CORPORATION
By: /s/ Warren Delano
--------------------------------------
Title: President
-------------------------------------
-4-
CONSENT
The undersigned guarantor hereby consents to the foregoing Amendment,
agrees to be bound by its terms applicable to it, and ratifies and confirms the
terms of its Guarantee and Waiver dated January 11, 1990 as applicable to all
present and future indebtedness, liabilities and obligations of LEXINGTON
PRECISION CORPORATION ("LPC") to CONGRESS FINANCIAL CORPORATION ("Congress"),
including, without limitation, all indebtedness, liabilities and obligations
under the Financing Agreements as amended hereby.
LEXINGTON RUBBER GROUP, INC.
By: /s/ Warren Delano
------------------------------
Title: President
------------------------------
-5-
EXHIBIT A
AGREEMENT
This Agreement dated as of July 9, 2003 (the "Agreement"), among
Lexington Precision Corporation, a Delaware corporation (the "LPC"), Lexington
Rubber Group, Inc., a Delaware corporation formerly known as Lexington
Components, Inc. ("LRG"; LPC and LRG are referred to individually as "Borrower"
and collectively as the "Borrowers"), and Congress Financial Corporation
("Congress").
WHEREAS, Congress and each of the Borrowers have entered into an
Accounts Financing Agreement [Security Agreement] dated as of January 11, 1990,
as amended, and all supplements thereto and related financing and security
agreements (all of the foregoing, as the same have been or may be amended,
replaced, extended, modified, or supplemented, are referred to as the "Financing
Agreements").
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, Congress hereby waives,
until August 11, 2003, any Event of Default resulting solely from the failure of
the LPC to pay any principal or interest due on (a) LPC's 12 3/4% Senior
Subordinated Notes due February 1, 2000, and/or (b) the 10-1/2% Senior Note due
May 1, 2002, of LPC and LRG (the indebtedness referred to in clauses (a) and (b)
is referred to herein as the "Other Indebtedness").
2. Rescission of Waivers. The foregoing waivers shall be
automatically rescinded, without notice to LPC or LRG, in the event that the
holder of any Other Indebtedness or trustee in respect thereof seeks to
accelerate the maturity of any such Other Indebtedness or to enforce or exercise
any remedies in respect thereto.
3. Effective Date.
This Agreement shall be deemed effective as of July 9, 2003.
4. 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 its part; and (b)
this Agreement has been duly executed and delivered by it and constitutes its
legal, valid, and binding agreement, enforceable against 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 by general equitable
principles.
5. No Other Amendments.
Except as set forth herein, all terms and provisions of the Financing Agreements
among Congress, LPC and LRG shall remain in full force and effect. Except as
expressly set forth herein, no other or further amendment, waiver or consent is
implied by, and LPC and LRG shall not be entitled to, any other or further
amendment, waiver or consent by virtue of the provisions of this Agreement. In
addition, without limiting the foregoing, the waivers of Congress set forth
herein do not constitute an agreement to, and LPC and LRG acknowledge that
Congress may decline to, grant any other or further waivers with respect to the
subject matter hereof or any other matters regardless of whether or not there
occurs any change in facts or circumstances relating to LPC and/or LRG.
6. General Provisions.
(a) Defined Terms. Capitalized terms used herein, unless
otherwise defined herein, shall have the meaning ascribed thereto in the
Financing Agreements.
(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
Agreement 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 successors and assigns of the parties
hereto.
(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, each Borrower and Congress have caused this
Agreement to be duly executed and delivered as of the date first written above.
LEXINGTON PRECISION CORPORATION
By: /s/ Warren Delano
--------------------------------
Name: Warren Delano
--------------------------------
Title: President
--------------------------------
LEXINGTON RUBBER GROUP, INC.
By: /s/ Warren Delano
--------------------------------
Name: Warren Delano
--------------------------------
Title: President
--------------------------------
CONGRESS FINANCIAL CORPORATION
By: /s/ Herbert C. Korn
--------------------------------
Name: Herbert C. Korn
--------------------------------
Title: Vice President
--------------------------------