Exhibit 10-6
October 31, 2002
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.
(a) The definition of "Interest Rate" contained in the letter
agreement re: Amendment to Financing Agreements, dated January 31, 1995, between
LPC and Congress, as amended by the letter agreement re: Amendment to Financing
Agreements, dated March 11, 1997, between LPC and Congress and the letter
agreement re: Amendment to Financing Agreements, dated October 1, 1999, between
LPC and Congress, is hereby deleted in its entirety and replaced with the
following:
"Interest Rate" shall mean, from and after November 1,
2002, as to Prime Rate Loans, a rate of one (1%) percent per
annum in excess of the Prime Rate; provided, that, Interest Rate
shall mean the rate of two (2%) percent per annum in excess of
the Prime Rate as to Prime Rate Loans, at Congress' option,
without notice, (a) for the period on and after the effective
date of termination or non-renewal hereof, or the date of the
occurrence of any Event of Default, and for so long as such Event
of Default is continuing as determined by Congress and until such
time as all Obligations are indefeasibly paid in full
(notwithstanding entry of
any judgment against LPC) and (b) on the Revolving Loans at any
time outstanding in excess of the amounts available to LPC under
the Accounts Agreement and supplements thereto, which excess(es)
continue to exist or arise after three (3) days' telephonic or
written notice to LPC of any such excess(es) (whether or not such
excess(es), arise or are made with or without Congress' knowledge
or consent and whether made before or after an Event of Default);
provided, further, that, the higher Interest Rate under the
immediately preceding proviso shall be inapplicable in the case
of any excess(es) described in clause (b) thereof if and to the
extent that Congress shall, at Congress' option, have agreed not
to charge the higher Interest Rate otherwise permitted to be
charged under such proviso, as evidenced by a writing expressly
so stating and signed by Congress.
(b) Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings ascribed thereto in the Accounts Agreement and
the other Financing Agreements.
2. 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 January 3,
2003 (the "Renewal Date"), unless sooner terminated pursuant to the
terms hereof."
3. Eurodollar Rate Loans. Notwithstanding any provision of the Accounts
Agreement or any of the other Financing Agreements to the contrary, from and
after November 1, 2002:
(a) LPC shall not request and Congress shall not make any
Eurodollar Rate Loans, except that any Eurodollar Rate Loans outstanding as of
October 31, 2002 shall continue to be treated as Eurodollar Rate Loans until the
end of the Interest Period currently in effect for such Eurodollar Rate Loans;
(b) the Interest Rate in respect of all Loans made on or after
such date shall be the Interest Rate applicable to Prime Rate Loans; and
(c) LPC shall not request that any Prime Rate Loans be converted
to Eurodollar Rate Loans and Congress shall not be obligated to convert any such
Prime Rate Loans to Eurodollar Rate Loans.
4. Financial Covenants - Working Capital. Effective as of August 1,
2002, Section IV(g)(i) of the Covenant Supplement to the Accounts Agreement is
hereby deleted in its entirety and the following is substituted therefor: "(i)
Intentionally deleted; and".
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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 to maintain the minimum Working
Capital as required under Section IV(g)(i)(b) of the Covenant Supplement to the
Accounts Agreement as of August 31, 2002.
(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
and upon receipt by LPC of a fully executed Agreement in the form of Exhibit A
hereto, 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 $80,000, 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 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:
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(a) Each of Congress and LPC shall have received an executed
original or executed original counterparts (as the case may be) of this
Amendment, 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. 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. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto. 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.
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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
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Title: Vice President
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AGREED AND ACCEPTED:
LEXINGTON PRECISION CORPORATION
By: /s/ Michael A. Lubin
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Title: Chairman of the Board
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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/ Michael A. Lubin
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Title: Chairman of the Board
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Exhibit A
AGREEMENT
This Agreement dated as of October 31, 2002 (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
January 3, 2003, any Event of Default resulting solely from the failure of the
LPC to pay any principal or interest due on (a) LPC's 14% Junior Subordinated
Notes due May 1, 2002, (b) LPC's Junior Subordinated Convertible Increasing Rate
Notes due May 1, 2000, (c) LPC's 12-3/4% Senior Subordinated Notes due February
1, 2000, and/or (d) the 10-1/2% Senior Note due May 1, 2002, of LPC and LRG (the
indebtedness referred to in clauses (a), (b), and (c) 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 October 31, 2002.
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
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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.
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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:
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Name:
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Title:
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LEXINGTON RUBBER GROUP, INC.
By:
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Name:
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Title:
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CONGRESS FINANCIAL CORPORATION
By:
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Name:
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Title:
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