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Exhibit 10.43
January 31, 1997
Lexington Components, Inc.
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 Components, Inc. ("LCI") 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").
LCI has requested Congress' consent to certain financing arrangements
between LCI and LPC, 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 LCI to Bank One upon certain real property and related personal
property in LaGrange, Georgia in order to secure certain additional loans by
Bank One to LCI in the aggregate principal amount of up to $1,600,000, (ii) a
security interest in certain additional equipment and mortgage liens upon
certain real property and related personal property of LPC, to be granted by LPC
to Bank One to secure certain additional loans by Bank One to LPC in the
aggregate principal amount of up to $3,950,000, and (iii) 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):
1. Amendments to Definitions.
(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
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"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, LCI 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 LCI, promptly after receipt
thereof, or sent by LCI 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 LCI to Congress pursuant to the Financing Agreements, LCI 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):
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(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 CIT Financing and Bank One Financing.
(b) This Amendment has been duly executed and delivered by LCI
and is in full force and effect as of the date hereof, and the agreements and
obligations of LCI contained herein constitute the legal, valid and binding
obligations of LCI enforceable against LCI 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 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 LPC 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
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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. LCI 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.
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 COMPONENTS, INC.
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
COMPONENTS, INC. ("LCI") to CONGRESS FINANCIAL CORPORATION ("Congress"),
including, without limitation, all indebtedness, liabilities and obligations
under the Financing Agreements as amended hereby.
LEXINGTON PRECISION CORPORATION
By: Warren Delano
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Title: President
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