1
Exhibit 10.78
January 28, 1999
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 "Term Loans" contained in the letter
agreement re: Amendment to Financing Agreements, dated January 31, 1995, between
LPC and Congress (the "January 1995 Amendment"), as amended by the letter
agreement re: Amendment to Financing Agreements, dated January 16, 1996, between
LPC and Congress and the letter agreement re: Amendment to Financing Agreements,
dated March 11, 1997, between LPC and Congress, is hereby amended to mean and
include all term loans now outstanding or hereafter made by Congress to LPC,
including, without limitation, the term loans made by Congress to LPC evidenced
by the January 1999 Additional LPC Term Note (as defined below), the LPC Fifth
Restated Note (as defined below) and any and all New Equipment Term Notes
heretofore or hereafter executed by LPC, as any such notes may hereafter be
amended, renewed, extended, restated or replaced.
(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. ADDITIONAL TERM LOAN. In order to evidence an additional one-time
advance to LPC (the "January 1999 Additional LPC Term Loan"), which shall be
made upon the effective date hereof, LPC is executing and delivering to Congress
a Term
2
Promissory Note in the principal amount of $3,550,000 (the "January 1999
Additional LPC Term Note"). The Obligations evidenced by the January 1999
Additional LPC Term Note shall be payable, including interest and other amounts,
as provided therein and, to the extent not inconsistent with the terms of the
January 1999 Additional LPC Term Note, as provided in the other Financing
Agreements, and shall be secured by all Collateral.
3. MAXIMUM AMOUNT OF NEW EQUIPMENT TERM LOANS. The first sentence of
Section 2(b) of the letter agreement re: Amendment to Financing Agreements,
dated as of March 25, 1994, between Congress and LPC, as heretofore amended by
the letter agreement re: Amendment to Financing Agreements, dated as of
August 1, 1994, the January 31, 1995 Amendment, and the March 11, 1997
Amendment, is hereby deleted in its entirety and replaced with the following:
"(b) Except in Congress' discretion the aggregate original
principal amount of all New Equipment Term Loans made to LPC plus the
aggregate original principal amount of all "New Equipment Term Loans"
(as defined in the LCI Financing Agreements) made to LCI under the LCI
Financing Agreements at any time after January 28, 1999, shall not
exceed $5,000,000."
4. MAXIMUM AMOUNT OF TERM LOANS. The aggregate principal amount of all
Term Loans and all "Term Loans" (as defined in the LCI Financing Agreements)
made to LCI, at any one time outstanding, shall not exceed the amount of
$28,000,000.
5. INVENTORY SUBLIMIT. Paragraph 3 of the letter agreement re:
Inventory Loans, dated March 23, 1990, as heretofore amended, is hereby further
amended by deleting the reference to "$7,000,000" and replacing it with
"$8,000,000".
6. 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 April 1, 2002 (the "Renewal Date"), unless
sooner terminated pursuant to the terms hereof."
7. EARLY TERMINATION FEE. Section 9.2 of the Accounts Agreement, as
heretofore amended, is hereby further amended by deleting the reference to
"April 1, 2000" and replacing it with "October 1, 1999".
8. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants
-2-
3
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.
(b) This Amendment and each instrument required to be executed
and delivered by LPC hereunder, 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 and therein constitute the legal, valid and
binding obligations of LPC enforceable against LPC in accordance with their
terms.
9. USE OF PROCEEDS; AMENDED AND RESTATED NOTE.
-------------------------------------------
The proceeds of the January 1999 Additional LPC Term Loan to
be made by Congress pursuant to Paragraph 2 hereof shall be used as follows:
(a) the amount of $2,090,175 shall be applied to the
outstanding principal balance of the Fourth Amended and Restated Promissory
Note, dated March 11, 1997, which, as of the date hereof, has an outstanding
principal balance of $8,358,180, resulting in a remaining outstanding principal
balance of $6,268,005. Such remaining outstanding principal balance will be
evidenced by the execution and delivery by LPC to Congress of a Fifth Amended
and Restated Promissory Note (as the same now exists or may hereafter be
amended, supplemented, renewed, extended, restated or replaced, the "LPC Fifth
Restated Note"). The Obligations evidenced by the LPC Fifth Restated Note shall
be payable, including interest and other amounts, as provided therein and, to
the extent not inconsistent with the terms of the LPC Fifth Restated Note, as
provided in the other Financing Agreements, and shall be secured by all
Collateral; and
(b) the amount of $1,459,825 shall be credited to LPC's
Revolving Loan account maintained by Congress under the Financing Agreements.
10. 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) Congress shall have received an executed original or
executed original counterparts (as the case may be) of this
-3-
4
Amendment together with the following, each of which shall be in form and
substance satisfactory to Congress:
(i) the January 1999 Additional LPC Term Note;
(ii) the LPC Fifth Restated Note;
(iii) certified resolutions of the Board of
Directors of LPC duly authorizing the
execution and delivery of this Amendment and
the instruments and transactions hereunder;
and
(iv) an Amendment between LCI and Congress with
respect to the LCI Financing Agreements and
the documents and instruments required
thereunder and the satisfaction of all
conditions precedent to the effectiveness
thereof.
(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.
11. 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. 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.
12. 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, including,
but not in limitation, the following:
(a) At Congress' request, LPC shall execute and deliver to
Congress such mortgage modification agreements or similar agreements with
respect to any and all properties of LPC which are encumbered by a mortgage or
deed of trust, as the case may be, in favor of Congress, to expressly secure,
without limitation, the notes evidencing the then current Term Loans and
-4-
5
other Financing Agreements evidencing the Obligations (it being agreed that the
absence of any such agreement shall not deprive Congress of the benefit of the
liens held by Congress on the real property covered by such mortgages or deeds
of trust, which shall continue to secure all Obligations); and
(b) In connection with such agreements under Section 12(a),
LPC shall arrange for the delivery, at LPC's expense, of an updated title
insurance policy and necessary endorsements thereto in favor of Congress, in
form and substance satisfactory to Congress, for each property that is subject
to such agreements.
13. 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: Laurence S. Forte
---------------------------------
Title: First Vice President
------------------------------
AGREED AND ACCEPTED:
LEXINGTON PRECISION CORPORATION
By: Michael A. Lubin
---------------------------------
Title: Chairman
------------------------------
-5-
6
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 to CONGRESS FINANCIAL CORPORATION, including, without
limitation, all indebtedness, liabilities and obligations under the Financing
Agreements as amended hereby.
LEXINGTON COMPONENTS, INC.
By: Michael A. Lubin
-----------------------
Title: Chairman
--------------------
-6-