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Exhibit 10.42
January 31, 1997
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Lexington Precision Corporation
767 Third Avenue
New York, New York 10017
Re: Amendment to Financing Agreements and Consent
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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").
LPC has requested Congress' consent to certain financing arrangements
between LPC and LCI, as co-borrowers, and Bank One (as such term is defined in
the March 1996 Consent (as defined below)), which incorporate and restate the
Bank one Financing (as such term is defined in the March 1996 Consent) and
provide for the following additional financing arrangements: (i) a mortgage lien
to be granted by LPC to Bank One upon certain real property and related personal
property in Casa Grande, Arizona in order to secure certain additional loans by
Bank One to LPC in the aggregate principal amount of up to $3,000,000, (ii) a
security interest in certain additional equipment to be granted by LPC to Bank
One in order to secure certain additional loans by Bank One to LPC in the
aggregate principal amount of up to $950,000, (iii) a mortgage lien to be
granted by LCI to Bank One covering certain real property and related personal
property in LaGrange, Georgia to secure certain additional loans by Bank One to
LCI in the aggregate principal amount of up to $1,600,000 and (iv) a line of
credit for credit cards issued to officers of LPC and LCI of up to $400,000. LPC
and LCI have advised Congress that LPC and LCI shall be jointly and severally
liable for all obligations of each of them to Bank One. Congress is willing to
provide such consent upon the terms and conditions set forth in this Amendment
to Financing Agreements and Consent (this "Amendment") and, in connection with
such consent and other matters pertaining to 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 (capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
ascribed thereto in the Accounts Agreement and the other Financing Agreements):
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1. Amendments to Definitions.
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(a) The definition of "Bank One Collateral" set forth in
paragraph 1(b) of the Amendment to Financing Agreements and Consent, dated March
14, 1996 (the "March 1996 Consent") is hereby amended such that, on and after
the date hereof, the term "Bank One Collateral" shall mean the collateral set
forth on Exhibits A, B, C, D, E and F annexed hereto.
(b) The definition of "Bank One Financing" set forth in
paragraph 1(c) of the March 1996 Consent is hereby amended such that, on and
after the date hereof, the reference to "$5,800,000" in such definition shall be
replaced with "$11,000,000".
(c) The definition of "Bank One Financing Agreements" set
forth in paragraph 1(d) of the March 1996 Consent is hereby amended such that,
on and after the date hereof, the term "Bank One Financing Agreements" shall
mean the Credit Facility and Security Agreement, dated as of the date hereof,
among LPC, LCI and Bank One, together with the promissory notes, guarantees and
mortgages delivered thereunder and all other documents, instruments and
agreements executed in connection therewith or pursuant thereto, as the same now
exist or may hereafter be amended, modified, supplemented, renewed, restated or
replaced.
2. CONSENT REGARDING BANK ONE COLLATERAL. To the extent such
consent is required, and has not been previously given under the Financing
Agreements, including the March 1996 Consent, Congress hereby consents to the
mortgage liens and security interests in the Bank One Collateral granted by LPC
and LCI to Bank One to secure the Bank One Financing pursuant to the Bank One
Financing Agreements, including any documents contemplated thereby which are to
be executed and delivered after the date hereof in connection with the loans to
be advanced pursuant to the Bank One Financing Agreements after the date hereof,
such consent to be effective as of the date hereof.
3. ADDITIONAL COVENANTS RELATING TO THE BANK ONE COLLATERAL. In
addition to all other covenants, representations and warranties contained in the
Financing Agreements applicable to the types or items of property included in
the Bank One Collateral (whether or not included in the Collateral), LPC agrees
as follows:
(a) LPC shall not remove from the premises of LPC described in
Exhibit A annexed hereto (the "North Canton Property"), any of the tangible
personal property comprising part of the Bank One Collateral, nor shall any
equipment or other tangible personal property of LPC, or any subsidiary of LPC,
be moved from another location of LPC or a subsidiary of LPC, to the North
Canton Property, in each case, except upon prior written
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notice to Congress. Notices given under this Section 3(a) shall include serial
numbers or other information sufficient to identify the particular items
removed.
(b) LPC shall furnish to Congress all material written notices
or demands concerning the Bank One Financing required to be delivered pursuant
to the Bank One Financing Agreements, other than notices under the Bank One
Financing Agreements as to future advances or loans or interest rates or
interest periods on borrowings, either received by LPC, promptly after receipt
thereof, or sent by LPC or on its behalf, promptly upon the sending thereof, as
the case may be.
4. ADDITIONAL 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 and on the date of each
advance in respect of the Bank One Financing.
(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.
5. CONDITIONS TO THE EFFECTIVENESS OF THIS AMENDMENT. Anything
contained in this Amendment to the contrary notwithstanding, this Amendment
shall be effective only upon the satisfaction of the following conditions
precedent:
(a) Congress shall have received an executed original or
executed original counterparts (as the case may be) of this Amendment together
with the following, each of which shall be in form and substance satisfactory to
Congress:
(i) true and complete copies of the Bank One
Financing Agreements as in effect on the date hereof;
(ii) an Amended and Restated Intercreditor
Agreement between Congress and Bank One, dated as of the date hereof, duly
executed and delivered on behalf of Bank One;
(iii) an executed original or executed original
counterparts of a letter agreement, dated as of the date hereof,
pursuant to which LPC and LCI acknowledge and consent to the
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Amended and Restated Intercreditor Agreement between Congress and Bank One and
agree that, although neither LPC nor LCI is a party thereto, each of LPC and LCI
will, together with its successors and assigns, be bound by the provisions
thereof; and
(iv) an executed original or executed original
counterparts of a letter agreement re: Amendment to Financing Agreements and
Consent, dated as of the date hereof, pertaining to the Bank One Collateral to
be granted by LCI to Bank One pursuant to the Bank One Financing and related
matters, together with the documents, instruments and agreements to be delivered
pursuant thereto;
(b) Bank One shall have disbursed, in immediately available
funds, for the account of LPC and LCI (i) the sum of $321,428.52, representing
partial disbursement to LPC of the "Casa Grande Loan" (as defined in the Bank
One Financing Agreements), which funds shall have been received by Congress and
applied to fully prepay the outstanding principal amount of the LPC Arizona Real
Estate Loan; and (ii) the sum of $1,071,428.64, representing partial
disbursement to LCI of the "LaGrange Term Loan" (as defined in the Bank One
Financing Agreements), which funds shall have been received by Congress and
applied to fully prepay the outstanding principal amount of the LCI Georgia Real
Estate Loan (as defined in the LCI Financing Agreements);
(c) All representations and warranties contained herein, in
the Accounts Agreements and in the other Financing Agreements shall be true and
correct in all material respects; and
(d) No Event of Default shall have occurred and no event
shall have occurred or condition shall be existing which, with notice or
passage of time or both, would constitute an Event of Default.
6. EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto,
the Accounts Agreement and all supplements to the Accounts Agreement, including,
without limitation, the Covenant Supplement 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. 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.
7. 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.
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8. 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.
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: Frank A. Chiovari
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Title: Vice President
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AGREED AND ACCEPTED:
LEXINGTON PRECISION CORPORATION
By: Warren Delano
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Title: President
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CONSENT
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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 COMPONENTS, INC.
By: Warren Delano
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Title: President
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