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Exhibit 10.55
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT dated as of March 19, 1997, is made by
and between LEXINGTON PRECISION CORPORATION ("DEBTOR") and THE CIT
GROUP/EQUIPMENT FINANCING, INC. ("CIT").
SECTION 1. DEFINITIONS.
All capitalized terms which are not defined herein are defined in Rider A
attached hereto and made a part hereof ("RIDER A"). Accounting terms not
specifically defined shall be construed in accordance with generally accepted
accounting principles.
SECTION 2. AMOUNT AND TERMS OF LOANS; GRANT OF SECURITY INTEREST.
Subject to the terms and conditions hereof, CIT agrees to make Loans to
Debtor from time to time, in the amounts described in paragraph 2 of Rider A.
Each Loan shall be evidenced by Debtor's Note, which Note shall set forth the
repayment terms and Interest Rate for such Loan.
As security for the prompt and complete payment and performance when due
of all the Obligations and in order to induce CIT to enter into this Agreement
and make the Loans and to extend other credit from time to time to Debtor,
whether under this Agreement or otherwise, Debtor hereby grants to CIT a first
priority security interest in all Debtor's right, title and interest in, to and
under the Collateral.
SECTION 3. CONDITIONS OF BORROWING.
CIT shall not be required to make any Loan hereunder unless on the Closing
Date thereof all legal matters with respect to, and all legal documents executed
in connection with, the contemplated transactions are satisfactory to CIT and
all of the following conditions are met to the satisfaction of CIT (except that
(a) and (b) are required in connection with the initial Loan only): (a) CIT has
received a satisfactory Secretary's Certificate certified by Debtor's Secretary
or Assistant Secretary; (b) Debtor has executed and delivered to CIT the Note
evidencing, and a Supplement describing the Equipment to be financed by, such
Loan; (c) the Equipment being financed by such Loan has been delivered to, and
accepted by, Debtor and CIT has received satisfactory evidence that the
Equipment is insured in accordance with the provisions hereof and that the Cost
thereof has been, or concurrently with the making of the Loan shall be, fully
paid; (d) CIT has received copies of the invoices and bills of sale, if any,
with respect to the Equipment being financed by such Loan; (e) all filings,
recordings and other actions (including the obtaining of landlord and/or
mortgagee waivers and a satisfactory intercreditor Agreement with Congress)
deemed necessary or desirable by CIT in order to perfect a first priority
security interest in the Equipment being financed by such Loan have been duly
effected, and all fees, taxes and other charges relating to such filings and
recordings have been paid by Debtor; (f) the representations and warranties
contained in this Agreement are true and correct in all material respects with
the same effect as if made on and as of such date, and no Default or Event of
Default is in existence on such date or shall occur as a result of such Loan;
(g) in the sole judgment of CIT, there has been no material adverse change in
the financial condition, business or operations of Debtor from the date referred
to in Section 4(j) hereof; (h) CIT has received from Debtor such other documents
and information as CIT has reasonably requested; and (i) CIT has inspected and
appraised each item of used Equipment and found it satisfactory in value and
condition, and all items of Equipment shall be satisfactory to CIT in value,
condition and type.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
In order to induce CIT to enter into this Agreement and to make each Loan,
Debtor represents and warrants to CIT that: (a) Debtor is a corporation duly
organized, validly existing and in good standing under the laws of its State of
incorporation, has the necessary authority and power to own the Equipment and
its other assets and to transact the business in which it is engaged, is duly
qualified to do business in each jurisdiction where the Equipment is located and
in each other jurisdiction in which the conduct of its business or the ownership
of its assets requires such qualification, and its chief executive office is
located at the address set forth in paragraph 6 of Rider A; (b) Debtor has full
power, authority and legal right to execute and deliver this Agreement and the
Notes, to perform its obligations hereunder and thereunder, to borrow hereunder
and to grant the security interest created hereby; (c) this Agreement has been
(and each Note when executed and delivered shall have been) duly authorized,
executed and delivered by Debtor and constitutes (and each Note when executed
and delivered shall constitute) a legal, valid and binding obligation of Debtor
enforceable in accordance with its terms except as such rights may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally; (d) the execution, delivery and performance by
Debtor of this Agreement and the Notes do not and will not violate any provision
of any applicable law or regulation or of any judgment or order of any court or
governmental instrumentality, and will not violate any provision of, or cause a
default under, any loan, other agreement, contract or judgment to which Debtor
is a party; (e) Debtor is not in default under any material agreement, contract
or judgment to which Debtor is a party; (f) Debtor has filed all tax returns
that are required to be filed and has paid all taxes as shown on said returns
and all assessments received by it to the extent such taxes and assessments have
become due other than those which are the subject of valid extensions and those
which are being contested in good faith by appropriate
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proceedings and as to which appropriate reserves are being maintained by Debtor
in accordance with generally accepted accounting principles and so long as such
proceedings operate during the pendency thereof to prevent the sale, forfeiture,
or loss of the Collateral by or to such taxing authority, and Debtor does not
have any knowledge of any actual or proposed deficiency or additional assessment
in connection therewith; (g) to the best of its knowledge, there is no action,
audit, investigation or proceeding pending or threatened against or affecting
Debtor or any of its assets which involves any of the Equipment or any of the
contemplated transactions hereunder or which, if adversely determined, could
reasonably be expected to have a material adverse effect on Debtor's business,
operations or financial condition; (h) on each Closing Date, Debtor shall have
good and marketable title to the Equipment being financed on such date and CIT
shall have a perfected first Lien on such Equipment; and (i) (i) the operations
of Debtor comply in all material respects with all applicable Environmental
Laws; and (ii) except as disclosed to CIT, (A) none of the operations of Debtor
are subject to any judicial or administrative proceeding alleging the violation
of any Environmental Laws; (B) none of the operations of Debtor is the subject
of an investigation to determine whether any remedial action is needed to
respond to a release of any Hazardous Material into the environment; and (C)
Debtor has no known material contingent liability in connection with any release
of any Hazardous Material into the environment: (j) all annual and quarterly
financial statements of Debtor which have been delivered to CIT have been
prepared in accordance with generally accepted accounting principles
consistently applied, and present fairly in all material respects Debtor's
financial position as at, and the results of its operations for, the periods
ended on the dates set forth on such financial statements, and there has been no
material adverse change in Debtor's financial condition, business or operations
since September 30, 1996, as reflected in such financial statements; (k) Debtor
has not changed its name in the last five years or done business under any other
name except as previously disclosed in writing to CIT; and (l) no consent of any
Person, and no consent, license, approval or authorization of, or registration
or filing with, any governmental authority, bureau or agency is required in
connection with the execution, delivery and performance of, and payment under,
this Agreement or the Notes other than the consent of Congress and the filing of
financing statements.
SECTION 5. COVENANTS.
Debtor covenants and agrees that from and after the date hereof and so
long as the Commitment or any of the Notes is outstanding:
(a) It will: (i) promptly give written notice to CIT of the occurrence of
any Event of Loss; (ii) observe all material requirements of any governmental
authorities relating to the conduct of its business, to the performance of its
obligations hereunder, to the use, operation or ownership of the Equipment, or
to its other properties or assets, maintain its existence as a legal entity and
obtain and keep in full force and effect all material rights, franchises,
licenses and permits which are necessary to the proper conduct of its business,
and pay all fees, taxes, assessments and governmental charges or levies imposed
upon any of the Equipment; (iii) at any reasonable time or times, permit CIT or
its authorized representative (A) upon prior written request to inspect the
Equipment and, (B) following the occurrence and during the continuation of an
Event of Default, to inspect the books and records of Debtor; (iv) in accordance
with generally accepted accounting principles, keep proper books of record and
account in which entries will be made of all dealings or transactions in
relation to its business and activities; (v) furnish to CIT the following
financial statements, all in reasonable detail, prepared in accordance with
generally accepted accounting principles applied on a basis consistently
maintained throughout the period involved, (A) as soon as available, but not
later than 120 days after the end of each fiscal year, its consolidated balance
sheet as at the end of such fiscal year, and its consolidated statements of
income and consolidated statements of cash flow, including all footnotes, or
such fiscal year, together with comparative information for the prior fiscal
year, audited by Ernst & Young, LLP or other certified public accountants
reasonably acceptable to CIT; and (B) as soon as available, but not later than
90 days after the end of each of the first three quarterly periods of each
fiscal year, its consolidated balance sheet as at the end of such quarterly
period and its consolidated statements of income and consolidated statements of
cash flow for such quarterly period and for the portion of the fiscal year then
ended together with comparative information for the prior comparable period,
certified as to their accuracy by its chief financial officer; (vi) furnish to
CIT, (A) together with the financial statements described in clauses (v)(A) and
(v)(B) above, a statement signed by Debtor's chief financial officer certifying
that Debtor is in compliance with all financial covenants contained herein, or
if Debtor is not in compliance, the nature of such noncompliance or default, and
the status thereof (such statement shall set forth the actual calculations of
any financial covenants), and (B) promptly, such additional financial and other
information as CIT may from time to time reasonably request; (vii) promptly, at
Debtor's expense, execute and deliver to CIT such instruments and documents, and
take such action, as CIT may from time to time reasonably request in order to
carry out the intent and purpose of this Agreement and to establish and protect
the rights, interests and remedies created, or intended to be created, in favor
of CIT hereby, including, without limitation, the execution, delivery,
recordation and filing of financing statements (hereby authorizing CIT, in such
jurisdictions where such action is authorized by law, to effect any such
recordation or filing of financing statements without Debtor's signature, and to
file as valid financing statements in the applicable financing statement
records, photocopies hereof and of any other financing statement executed in
connection herewith); PROVIDED, HOWEVER, notwithstanding anything in this
Agreement to the contrary, in no event shall CIT file any financing statement or
other public document which specifically lists the particular items of Equipment
included in the Collateral; (viii) warrant and defend its good and marketable
title to the Equipment, and CIT's perfected first priority security interest in
the Collateral, against all claims and demands whatsoever (hereby agreeing that
the Equipment shall be and at all times remain separately identifiable personal
property, and shall not become part of any real estate), and will, at its
expense, take such action as may be necessary to prevent any other Person (other
than Congress) from acquiring any right or interest in the Equipment; (ix) at
Debtor's expense, if requested by CIT in writing, attach to the Equipment a
notice satisfactory to CIT disclosing CIT's security interest
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in the Equipment; (x) at Debtor's expense, maintain the Equipment in good
condition and working order and furnish all parts, replacements and servicing
required therefor so that the value, condition and operating efficiency thereof
will at all times be maintained, normal wear and tear excepted, and any repairs,
replacements and parts added to the Equipment in connection with any repair or
maintenance or with any improvement, change, addition or alteration shall
immediately, without further act, become part of the Equipment and subject to
the security interest created by this Agreement; and (xi) obtain and maintain at
all times on the Collateral, at Debtor's expense, "All-Risk" physical damage
and, if required by CIT, liability insurance (including bodily injury and
property damage) in such amounts, against such risks, in such form and with such
insurers as shall be reasonably satisfactory to CIT; PROVIDED, HOWEVER, that the
amount of physical damage insurance shall not be less than the then aggregate
outstanding principal amount of the Notes. All physical damage insurance
policies shall be made payable to CIT as its interest may appear; if liability
insurance is required by CIT, the liability insurance policies shall name CIT as
an additional insured. Debtor shall maintain and deliver to CIT the original
certificates of insurance or other documents satisfactory to CIT prior to policy
expiration or upon CIT's request, but CIT shall bear no duty or liability to
ascertain the existence or adequacy of such insurance. Each insurance policy
shall, among other things, require that the insurer give CIT at least 30 days'
prior written notice of any material alteration in the terms of such policy or
the cancellation thereof and that the interests of CIT be continued insured
regardless of any breach of or violation by Debtor of any warranties,
declarations or conditions contained in such insurance policy. The insurance
maintained by the Debtor shall be primary with no other insurance maintained by
CIT (if any) contributory.
(b) It will not: (i) 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; (ii) create, assume or suffer to exist any Lien upon
the Collateral except for the security interest created hereby and the
subordinate security interest in favor of Congress; (iii) liquidate or dissolve;
(iv) change the form of organization of its business; or (v) without thirty (30)
days prior written notice to CIT, change its name or its chief executive office;
(vi) move (or in the case of titled vehicles, change the principal base of) any
of the Equipment from the location specified on the Supplement relating thereto
without the prior written consent of CIT except within the continental United
States upon 30 days prior written notice to CIT (provided that Debtor delivers
to CIT such financing statements as CIT requests to maintain its perfected first
priority security interest in such Equipment); or (vii) make or authorize any
improvement, change, addition or alteration to the Equipment which would impair
its originally intended function or use or its value. Notwithstanding anything
herein to the contrary, Debtor shall have the right to substitute up to
$1,000,000.00 of items of Equipment included in the Collateral with other items
of Equipment of a like type and of a value and utility equal to or greater than
the Equipment replaced, or other items of Equipment acceptable to CIT. Any
Equipment which is so substituted for shall no longer be Collateral for purposes
of this Agreement.
SECTION 6. EVENTS OF DEFAULT; REMEDIES.
The following events shall each constitute an "EVENT OF DEFAULT"
hereunder: (a) Debtor shall fail to pay any principal or interest on any Note
within 10 days after the same becomes due (whether at the stated maturity, by
acceleration or otherwise) or shall fail to pay any other Obligation when due
(whether at the stated maturity, by acceleration or otherwise) which failure is
not cured within 10 days after Debtor's receipt of notice from CIT; (b) any
representation or warranty made by Debtor in this Agreement or in any document,
certificate or financial or other statement now or hereafter furnished by Debtor
in connection with this Agreement or any Loan shall at any time prove to be
untrue or misleading in any material respect as of the time when made; (c)
Debtor shall fail to observe any covenant, condition or agreement contained in
Sections 5.A(11) or 5.B hereof or in paragraphs 4 or 5(b) of Rider A, which
failure shall continue for a period of ten (10) days after receipt of notice
from CIT; (d) Debtor shall fail to observe or perform any other covenant or
condition contained in this Agreement, and such failure shall continue
unremedied for a period of 30 days after the date on which notice thereof shall
be given by CIT to Debtor; (e) Debtor or any affiliate of Debtor shall default
(i) in the payment of, or other performance under, any obligation for payment or
lease (whether or not capitalized) or any guarantee to CIT or any affiliate of
CIT beyond the period of grace, if any, provided with respect thereto, or (ii)
in the payment or performance of any obligation for borrowed money to any other
Person beyond the period of grace, if any, provided with respect thereto, where
such obligation or amount guaranteed is in excess of $100,000 if such obligation
for borrowed money is accelerated as a result thereof; (f) a complaint in
bankruptcy or for arrangement or reorganization or for relief under any
insolvency law is filed by or against Debtor (and when filed against Debtor is
in effect for 60 days) or Debtor admits its inability to pay its debts as they
mature; or (g) upon the expiration of Debtor's current revolving loan facility
with Congress, Debtor shall fail to renew such facility with Congress or shall
fail to replace such facility with another lender reasonably acceptable to CIT
with terms and conditions reasonably acceptable to CIT.
If an Event of Default shall occur and be continuing, CIT may, by notice
of default given to Debtor, do any one or more of the following: (a) terminate
the Commitment and/or (b) declare the Notes to be due and payable, whereupon the
principal amount of the Notes, together with accrued interest thereon and all
other amounts owing under this Agreement and the Notes, shall become immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived (and in the case of any Event of
Default specified in clause (f) of the above paragraph, such acceleration of the
Notes shall be automatic, without any notice by CIT). In addition, if an Event
of Default shall occur and be continuing, CIT may exercise all other rights and
remedies available to it, whether under this Agreement, under any other
instrument or agreement securing, evidencing or relating to the Obligations,
under the Code, or otherwise available at law or in equity. Without limiting the
generality of the foregoing, Debtor agrees that in any such event,
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CIT, without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon Debtor or any other Person (all and each of which
demands, advertisements and notices are hereby expressly waived), may forthwith
do any one or more of the following: collect, receive, appropriate and realize
upon the Collateral or any part thereof, and sell, lease, assign, give an option
or options to purchase or otherwise dispose of and deliver, the Collateral (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales at such places and at such prices as it may deem best, for
cash or on credit or for future delivery without the assumption of any credit
risk. CIT shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption of Debtor, which right or equity is hereby expressly released. Debtor
further agrees, at CIT's request, to assemble (at Debtor's expense) the
Collateral and make it available to CIT at such places which CIT shall select,
whether at Debtor's premises or elsewhere but not more than 1000 miles from
Debtor's premises. CIT shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale (after deducting all
reasonable costs and expenses of every kind incurred therein or incidental to
the care, safekeeping or otherwise of any or all of the Collateral or in any way
relating to the rights of CIT hereunder, including reasonable attorney's fees
and legal expenses) to the payment in whole or in part of the Obligations, in
such order as CIT may elect. Debtor agrees that CIT need not give more than 10
days' notice of the time and place of any public sale or of the time after which
a private sale may take place and that such notice is reasonable notification of
such matters. Debtor shall be liable for any deficiency if the proceeds of any
sale or disposition of the Collateral are insufficient to pay all amounts to
which CIT is entitled. Debtor agrees to pay all costs of CIT, including
reasonable attorneys' fees, incurred with respect to collection of any of the
Obligations and enforcement of any of CIT's rights hereunder. To the extent
permitted by law, Debtor hereby waives presentment, demand, protest or any
notice (except as expressly provided in this Section 6) of any kind in
connection with this Agreement or any Collateral.
SECTION 7. MISCELLANEOUS.
(a) No failure or delay by CIT in exercising any right, remedy or
privilege hereunder or under any Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy or privilege hereunder
or thereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy or privilege. No right or remedy in this Agreement is
intended to be exclusive but each shall be cumulative and in addition to any
other remedy referred to herein or otherwise available to CIT at law or in
equity; and the exercise by CIT of any one or more of such remedies shall not
preclude the simultaneous or later exercise by CIT of any or all such other
remedies. No express or implied waiver by CIT of an Event of Default shall in
any way be, or be construed to be, a waiver of any other or subsequent Event of
Default. The acceptance by CIT of any regular installment payment or any other
sum owing hereunder shall not (a) constitute a waiver of any Event of Default in
existence at the time, regardless of CIT's knowledge or lack of knowledge
thereof at the time of such acceptance, or (b) constitute a waiver of any Event
of Default unless CIT shall have agreed in writing to waive the Event of
Default.
(b) All notices, requests and demands to or upon any party hereto 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 such party at its address (or telecopier number)
set forth in paragraph 6 of Rider A or such other address or telecopier number
as may be hereafter designated in writing by such party to the other party
hereto.
(c) Debtor agrees (A) to pay or reimburse CIT for (i) all expenses of CIT
in connection with the documentation hereof; (ii) all fees, taxes and expenses
of whatever nature incurred in connection with the creation, preservation and
protection of CIT's security interest in the Collateral, including, without
limitation, all filing and lien search fees, payment or discharge of any taxes
or Liens upon, or in respect to, the Collateral, and all other fees and expenses
reasonably incurred in connection with protecting or maintaining the Collateral
or in connection with defending or prosecuting any actions, suits or proceedings
arising out of, or related to, the Collateral; and (iii) all costs and expenses
(including reasonable legal fees and disbursements) of CIT in connection with
the enforcement of this Agreement and the Notes, and (B) to pay, and to
indemnify and hold CIT harmless from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, judgments, suits,
out-of-pocket costs, expenses (including reasonable legal expenses) or
disbursements of any kind or nature whatsoever arising out of or with respect to
(a) this Agreement, the Collateral or CIT's interest therein, including, without
limitation, the execution, delivery, enforcement, performance or administration
of this Agreement and the Notes and the manufacture, purchase, ownership,
possession, use, selection, operation or condition of the Collateral or any part
thereof, or (b) Debtor's violation or alleged violation of any Environmental
Laws or any law or regulation relating to Hazardous Materials (the foregoing
being referred to as the "indemnified liabilities"), PROVIDED, that Debtor shall
have no obligation hereunder with respect to indemnified liabilities arising
from the gross negligence or willful misconduct of CIT. If Debtor fails to
perform or comply with any of its agreements contained in this Agreement and CIT
shall itself perform, comply or cause performance or compliance, the expenses of
CIT so incurred, together with interest thereon at the Late Charge Rate, shall
be payable by Debtor to CIT on demand and until such payment is made shall
constitute Obligations hereunder. The agreements and indemnities contained in
this paragraph shall survive termination of this Agreement and payment of the
Notes.
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(d) This Agreement contains the complete, final and exclusive statement of
the terms of the agreement between CIT and Debtor related to the contemplated
transactions, and neither this Agreement, nor any terms hereof, may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of a change, waiver, discharge or
termination is sought.
(e) This Agreement shall be binding upon, and inure to the benefit of,
Debtor and CIT and their respective successors and assigns, except that Debtor
may not assign or transfer its rights hereunder or any interest herein without
the prior written consent of CIT.
(f) Headings of sections and paragraphs are for convenience only, are not
part of this Agreement and shall not be deemed to affect the meaning or
construction of any of the provisions hereof. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(g) Debtor hereby authorizes CIT to correct patent errors and to fill in
such blanks as dates herein and in the Notes, Supplements and in any document
executed in connection herewith.
(h) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
DEBTOR HEREBY IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL ACTION IN
CONNECTION WITH THIS AGREEMENT MAY BE INSTITUTED IN THE COURTS OF THE STATE OF
NEW YORK, IN THE COUNTY OF NEW YORK OR THE UNITED STATES COURTS FOR THE SOUTHERN
DISTRICT OF NEW YORK, AS CIT MAY ELECT, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, DEBTOR 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. DEBTOR AND CIT ACKNOWLEDGE THAT JURY TRIALS
OFTEN ENTAIL ADDITIONAL EXPENSES AND DELAYS NOT OCCASIONED BY NONJURY TRIALS.
DEBTOR AND CIT 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, DEBTOR
AND CIT 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 DEBTOR AND CIT HEREBY AGREE AND CONSENT
THAT DEBTOR OR CIT 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of March 27, 1997.
CIT: DEBTOR:
THE CIT GROUP/EQUIPMENT LEXINGTON PRECISION CORPORATION,
FINANCING, INC., A DELAWARE CORPORATION
A NEW YORK CORPORATION
By: Wendy Berney By: Michael A. Lubin
------------------------------ -------------------------------
Title: Vice President Title: Chairman
--------------------------- ----------------------------
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RIDER A TO
LOAN AND SECURITY AGREEMENT
DATED AS OF MARCH 19, 1997
BETWEEN THE CIT GROUP/EQUIPMENT FINANCING, INC. ("CIT") AND
LEXINGTON PRECISION CORPORATION ("DEBTOR").
1. DEFINITIONS. As used in the Loan and Security Agreement, the following terms
shall have the following defined meanings (applicable to both singular and
plural forms), unless the context otherwise requires:
"AGREEMENT": "hereof", "hereto", "hereunder" and words of similar meaning:
the Loan and Security Agreement of even date herewith between Debtor and CIT
including this Rider A and any other rider, schedule and exhibit executed by
Debtor and CIT in connection herewith, as from time to time amended, modified or
supplemented.
"APPRAISAL": an appraisal satisfactory to CIT commissioned by CIT with
respect to the items of used Equipment. {this definition can be made more
specific once the appraiser is engaged and the appraisal conducted].
"BUSINESS DAY": a day other than a Saturday, Sunday or legal holiday under
the laws of the State of New York.
"CASH FLOW COVERAGE RATIO": with respect to Debtor shall mean at any time,
the sum of Debtor's net income, depreciation and amortization less its dividends
divided by the current portion of its long term debt excluding its 12 3/4%
Senior Subordinated Notes due February 1, 2000 in the original principal amount
of $31,720,000; PROVIDED; that for the purposes of this calculation the Debtor's
results of operations for any four consecutive fiscal quarters shall exclude any
write-down or write-off of assets (whether tangible or intangible) of any
manufacturing facility or business unit of the Debtor which is recorded by
Debtor as a result of the restructuring, relocation, shutdown or sale of such
manufacturing facility or business unit or as a result of compliance with
Financial Accounting Standard No. 121, Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of.
"CLOSING DATE": each date on which a Loan is made.
"CODE": the Uniform Commercial Code as from time to time in effect in any
applicable jurisdiction.
"COMMITMENT": CIT's obligation to make Loans in the aggregate principal
amount stated in paragraph 2 of this Rider A.
"CONGRESS": Congress Financial Corporation and its successors and assigns.
"COST": with respect to any item of new Equipment (up to six months since
purchase), the seller's invoiced purchase price therefor (after giving effect to
any discount or other reduction) payable by Debtor excluding all other amounts
and expenses payable by Debtor (unless approved by CIT) such as installation,
freight, tooling, delivery charges, sales taxes, site preparation, and other
similar costs with respect Equipment or, with respect to any item of used
Equipment (more than six and not more than twelve months since purchase), such
amount as CIT may approve. The Cost shall be set forth in the applicable
Supplement.
"DEFAULT": any event which with notice, lapse of time, or both would
constitute an Event of Default.
"EQUIPMENT": any and all items of property which are listed on Supplements,
together with all now owned or hereafter acquired accessories, parts, repairs,
replacements, substitutions, attachments, modifications, additions,
improvements, upgrades and accessions of, to or upon such items of property.
"ENVIRONMENTAL LAWS": the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response, Compensation and Liability Act, any
so-called "Superfund" or "Superlien" law, the Toxic Substances Control Act, or
any other federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at any time hereafter in effect.
"EVENT OF DEFAULT": as set forth in Section 6 of the Agreement.
"EVENT OF LOSS": with respect to any item of Equipment, (i) the actual or
constructive loss or loss of use thereof, due to theft, destruction, damage
beyond repair or to an extent which makes repair uneconomical, or (ii) the
condemnation, confiscation or seizure thereof, or requisition of title thereto,
or use thereof, by any Person.
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"HAZARDOUS MATERIALS": any pollutant or contaminant defined as such in (or
for the purposes of) any Environmental Laws including, but not limited to,
petroleum, any radioactive material, and asbestos in any form or condition.
"INDEBTEDNESS" shall mean all items which, in accordance with generally
accepted accounting principles, consistently applied, would be included in
determining total liabilities of Debtor shown on the liability side of its
balance sheet as at the date such Indebtedness is to be calculated.
"INSTALLMENT PAYMENT DATE": with respect to any Note, each date on which a
regular installment of interest is due.
"INTEREST RATE": as set forth in paragraph 3 of this Rider A.
"INTEREST RATE PERIOD": with respect to the first Interest Rate Period, the
period commencing the day such Loan is made and ending on the last day of the
second month following the day the Loan is made and with respect to each
Interest Rate Period thereafter, each successive one-month period thereafter,
commencing on the first day of each month.
"LATE CHARGE RATE": a rate per annum equal to the higher of 3% over the
applicable Interest Rate, but not to exceed the highest rate permitted by
applicable law.
"LIBOR RATE": shall mean the rate of interest equal to the thirty (30)-day
London Interbank Offered Rate on United States Dollars as reported and published
in THE WALL STREET JOURNAL. The LIBOR Rate in effect during any Interest Rate
Period shall be the LIBOR Rate in effect at the close of business on the latest
Rate Determination Date preceding the Installment Payment Date upon which such
Interest Rate Period commences.
"LIENS": liens, mortgages, security interests, financing statements or
other encumbrances of any kind whatsoever.
"LOAN": each loan made pursuant to the Agreement.
"NOTE": each promissory note executed and delivered by Debtor pursuant
hereto, satisfactory in form and substance to CIT.
"OBLIGATIONS": all indebtedness, obligations, liabilities and performance
of Debtor to CIT, now existing or hereafter incurred under, arising out of, or
in connection with, the Agreement or any Note.
"PARENT COMPANY": any Person having beneficial ownership (directly or
indirectly) of 25% or more of Debtor's shares of voting stock.
"PERSON": an individual, partnership, corporation, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"PREPAYMENT PERCENTAGE": on the date of any prepayment of any Note pursuant
to the Agreement (i) during or prior to the first twelve months thereof, 3%,
(ii) during the second twelve months thereof, 1.5%, (iii) during the third
twelve months thereof, 0.75% and (iv) thereafter 0%.
"PROCEEDS": the meaning assigned to it in the Code, and in any event,
including, without limitation, (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to time with respect
to any of the Equipment; (ii) any and all payments made, or due and payable from
time to time, in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Equipment by any Person; (iii)
any and all accounts arising out of, or chattel paper evidencing a lease of, any
of the Equipment; and (iv) any and all other rents or profits or other amounts
from time to time paid or payable in connection with any of the Equipment.
"PROHIBITED TRANSACTION": a transaction in which: (i) Debtor enters into
any transaction of merger or consolidation where (x) it shall not be the
surviving corporation or (y) if it is the surviving corporation, after giving
effect to such merger or consolidation its tangible net worth does not equal or
exceed that which existed prior to such merger or consolidation; or (ii) Debtor
sells, transfers or otherwise disposes of all or substantially all its assets;
or (iii) any Person, or group of Persons acting together, becomes or agrees to
become the beneficial owner (directly or indirectly) of 25% or more of Debtor's
shares of voting stock (excluding current shareholders and their affiliates as
of the date of this Agreement owning in the aggregate 25% or more of Debtor's
shares of voting stock).
"RATE DETERMINATION DATE" shall mean with respect to any Interest Rate
Period for any Loan made hereunder, shall mean the third preceding Business Day
prior to the commencement of any Interest Rate Period, or if such day is not a
day on which THE WALL STREET JOURNAL is published (or if published, does not
publish the LIBOR Rate), then on the next preceding day prior to the day on
which THE WALL STREET JOURNAL is published and reports the LIBOR Rate.
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"SUPPLEMENT": each supplement executed and delivered by Debtor pursuant
hereto, satisfactory in form and substance to CIT.
"WORKING CAPITAL": shall mean and include, at any time, the amount, if any,
by which (i) the aggregate net book value of all assets of Debtor which would,
in accordance with generally accepted accounting principles, consistently
applied, be classified as current assets at any such time, exceeds (ii) all
Indebtedness of Debtor which would, in accordance with generally accepted
accounting principles, consistently applied, be classified as current
liabilities at such time; PROVIDED, THAT in computing Working Capital hereunder,
none of the Obligations of Debtor to CIT and none of the obligations of Debtor
to Congress or Bank One, Akron, NA shall be considered current liabilities.
2. LOAN AND COMMITMENT. The aggregate principal amount of all Loans shall not
exceed the lesser of (a) $6,000,000.00 and (b) 100% of the Cost of new items of
Equipment and 90% of the Cost of used items of Equipment. Each Loan shall be in
a principal amount of not less than $300,000, and CIT shall not make more than
four (4) Loans. Each Loan shall be amortized in sixty (60) level payments of
principal. Interest on the unpaid principal balance shall be payable at the rate
specified in the Notes. Interest shall be payable monthly on the first day of
each calendar month commencing with the second calendar month after the day the
Loan is made. CIT's Commitment shall terminate on December 31, 1997. The
proceeds of each Loan shall be to finance the purchase of, or reimburse Debtor
for the cost of, the Equipment.
3. INTEREST RATE. The interest rate per annum on the unpaid principal amount of
each Loan shall be equal to the LIBOR Rate plus 2.75%.
4. FINANCIAL COVENANTS. Debtor agrees that so long as any Note remains
outstanding and unpaid, Debtor shall, directly or indirectly, at all times: (a)
maintain on a basis consolidated with Debtor's direct and indirect subsidiaries,
Working Capital of not less than $1,000,000; (b) maintain on a basis
consolidated with Debtor's direct and indirect subsidiaries, a minimum Net Worth
of not less than negative $8,500,000; (c) maintain a Cash Flow Coverage Ratio of
(i) not less than 1.15 to 1.0 from January 1, 1997 through May 31, 1997, (ii)
not less than 1.2 to 1.0 from June 1, 1997 through November 30, 1997, and (iii)
not less than 1.25 to 1.0 on and after December 1, 1997, calculated on a rolling
four quarter basis; or (d) not incur, make or commit to make any expenditure in
respect of the purchase or other acquisition of fixed or capital assets
including leases which in accordance with generally accepted accounting
principles should be capitalized on the books of Debtor (including normal
replacements and maintenance) which after giving effect thereto, would cause the
aggregate amount of such capital expenditures by Debtor to exceed $18,000,000 in
Debtor's fiscal year 1997 and $15,000,000 (on a non-cumulative basis) in any
fiscal year thereafter.
5. PREPAYMENT. (a) Should any item of Equipment suffer an Event of Loss, Debtor
shall either replace such item of Equipment within 60 days with equipment (which
shall become Equipment) of a value and utility equal to or greater than that of
the Equipment suffering the Event of Loss (such determination of value and
utility being deemed made immediately prior to the Event of Loss) or make a
prepayment on the corresponding Note within 60 days after the occurrence of the
Event of Loss. The amount to be prepaid shall be (i) the unpaid principal amount
of such Note multiplied by a fraction the numerator of which is the Cost of the
item of Equipment which suffered the Event of Loss and the denominator of which
is the Cost of all items of Equipment less the Cost of each item of Equipment
which previously suffered an Event of Loss or for which a prepayment has
otherwise previously been made (the "PREPAID PRINCIPAL AMOUNT"), (ii) all other
amounts then due and owing hereunder and under the Notes and (iii) an amount
equal to the product of the Prepayment Percentage and the Prepaid Principal
Amount.
(b) A Prohibited Transaction may be consummated only with CIT's prior
written consent. Not less than twenty (20) Business Days prior to the date the
proposed Prohibited Transaction is expected to be consummated, Debtor shall give
CIT written notice of the proposed Prohibited Transaction. In the event CIT does
not consent to the Prohibited Transaction and the Prohibited Transaction is
nonetheless to be consummated, Debtor shall, on or prior to the date the
Prohibited Transaction is to be consummated, prepay the outstanding principal
under all Notes together with (1) all interest accrued thereon, (2) all other
amounts then due and owing hereunder and under the Notes, and (3) an amount
equal to the product of the Prepayment Percentage and the outstanding principal
amount of the Notes.
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(c) On any Installment Payment Date Debtor may, at its option, on at least
30 days' prior written notice to CIT, prepay all, but not less than all, of the
outstanding principal under all Notes executed hereunder together with (i) all
interest accrued thereon to the date of prepayment, (ii) all other amounts then
due and owing hereunder or under the Notes, and (iii) an amount equal to the
product of the outstanding principal under all Notes and the Prepayment
Percentage.
(d) Except as provided in (a), (b) or (c) of this paragraph 5, the Notes
may not be prepaid in whole or in part.
6. ADDRESSES FOR NOTICE PURPOSES AND DEBTOR'S CHIEF EXECUTIVE OFFICE.
CIT: DEBTOR:
THE CIT GROUP/EQUIPMENT FINANCING, INC. LEXINGTON PRECISION
CORPORATION
900 Ashwood Parkway c/o Lubin Delano & Co.
Suite 600 767 Third Avenue
Atlanta, Georgia 30338 New York, New York 10017
Telecopier No. (770) 551-7867 Telecopier No. (212) 319-4659
Attention: William Hickey Attention: Warren Delano, President
with a copy to:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
650 CIT Drive
Livington, New Jersey 07039
Telecopier No. (201) 740-5005
Attention: Vice President, Credit
7. COMMITMENT FEE. CIT acknowledges receipt from Debtor of a commitment fee in
the amount of $5000 ("Commitment Fee"). Of this amount $2000 shall be in all
events non-refundable. CIT agrees to refund to Debtor after the expiration of
the commitment period hereunder and completion by CIT of all follow-up matters
related to the transactions contemplated hereby, as the refundable portion of
the Commitment Fee, the amount determined in accordance with the following
formula and the following proviso:
Refund = $3000 Aggregate principal amount of all Loans made
X hereunder - not to exceed $6,000,000
--------------------------------------------
$6,000,0000
PROVIDED, HOWEVER, that such refund shall be net of any unreimbursed
out-of-pocket fees, costs, disbursements and expenses incurred by CIT in
connection with the transactions contemplated hereby. Debtor agrees that the
difference, if any, between the refundable portion of the Commitment Fee and the
amount determined in accordance with the foregoing formula shall be retained by
CIT.
THE PROVISIONS SET FORTH IN THIS RIDER A ARE INCORPORATED IN AND MADE A PART OF
THE LOAN AND SECURITY AGREEMENT BETWEEN CIT AND DEBTOR DATED AS OF MARCH 19,
1997.
CIT: DEBTOR:
THE CIT GROUP/EQUIPMENT LEXINGTON PRECISION CORPORATION,
FINANCING, INC., A NEW YORK CORPORATION A DELAWARE CORPORATION
By: WENDY BERNEY By: MICHAEL A. LUBIN
-------------------------------- -----------------------------
Title: VICE PRESIDENT Title: CHAIRMAN
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