EXHIBIT 10.4
AMENDMENT NO. 3 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated
as of September 3, 2004, by and among Lexington Precision Corporation, a
Delaware corporation ("LPC"), Lexington Rubber Group, Inc. ("LRG" and together
with LPC, individually, each a "Borrower" and collectively, "Borrowers"), the
parties to the Loan Agreement (as hereinafter defined) as lenders (each
individually, a "Lender" and collectively, "Lenders") and Congress Financial
Corporation, a Delaware corporation, in its capacity as agent for Lenders (in
such capacity, "Agent").
W I T N E S S E T H :
Whereas, Agent, Lenders and Borrowers have entered into financing
arrangements pursuant to which Lenders (or Agent on behalf of Lenders) have made
and may make loans and advances to Borrowers as set forth in the Amended and
Restated Loan and Security Agreement, dated December 18, 2003, by and among
Borrowers, Agent, The CIT Group/Business Credit, Inc., in its capacity as
co-agent (in such capacity, "Co-Agent"), and Lenders, as amended by Amendment
No. 1 to Amended and Restated Loan and Security Agreement, dated as of March 31,
2004, by and among Borrowers, Agent and Lenders and by Amendment No. 2 to
Amended and Restated Loan and Security Agreement, dated as of August 16, 2004,
by and among Borrowers, Agent and Lenders (as the same now exists and is amended
hereby or may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement"), and other agreements,
documents and instruments at any time executed and/or delivered in connection
therewith (all of the foregoing, including the Loan Agreement, as the same now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, being collectively referred to herein as the "Financing
Agreements").
WHEREAS, Borrowers have requested that Agent and Lenders agree to certain
amendments to the Loan Agreement and Agent and Lenders are willing to agree to
such amendments, subject to the terms and conditions contained herein; and
WHEREAS, by this Amendment No. 3, Borrowers, Agent and Lenders intend to
evidence such amendments.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements and covenants contained herein, the parties hereto agree as follows:
SECTION 1. Definitions.
1.1 Additional Definitions. As used herein, the following terms
shall have the respective meanings given to them below and the Loan Agreement
shall be deemed and is hereby amended to include, in addition and not in
limitation, each of the following definitions:
(a) "Amendment No. 3" shall mean this Amendment No. 3 to
Amended Restated Loan and Security Agreement by and among Agent, Lenders and
Borrowers as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed,
restated or replaced, and the Loan Agreement shall be deemed and is hereby
amended to include, in addition and not in limitation of, such definition.
(b) "Cohanzick Debt" shall mean all unsecured indebtedness,
obligations and liabilities of every kind, nature and description owing by any
Borrower to Cohanzick High Yield, including principal, interest, charges, fees,
premiums, indemnities, costs and expenses, however evidenced, whether as a
principal, surety, endorser, guarantor or otherwise, arising under the Cohanzick
Loan Documents.
(c) "Cohanzick Loan Documents" shall mean, individually and
collectively (as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced), the following: (i) the
Loan Agreement, dated as of September 3, 2004, among Borrowers and Cohanzick
High Yield ("Cohanzick Loan Agreement") and (ii) all other agreements, documents
and instruments executed and delivered by the Borrowers in connection therewith.
(d) "Cohanzick High Yield" shall mean Cohanzick High Yield
Partners, L.P., a Delaware limited partnership, and its respective heirs,
executors, trustees, legal representatives, successors and assigns.
1.2 Defined Terms. For purposes of this Amendment No. 3, unless
otherwise defined herein, all terms used herein, including, but not limited to,
those terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
SECTION 2. Amendments.
2.1 Section 9.9(f)(v) of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
"(v) Borrowers shall not, directly or indirectly, redeem, retire,
defease, purchase or otherwise acquire all or any part of such
Indebtedness other than at maturity (as set forth in the Senior
Subordinated Note Indenture as in effect on the date hereof or as
extended after the date hereof), or set aside or otherwise deposit
or invest any sums for such purpose, except, that: (i) Borrowers may
redeem or purchase all or any part of such Indebtedness after one
(1) year from the date of this Agreement, provided, that, as of the
date of any such redemption or purchase or any payment in respect
thereof and after giving effect thereto: (A) Borrowers shall give to
Agent written notice thereof on the day Borrowers so redeem or
purchase all or any part of such Indebtedness, which notice shall
specify the maximum amount that Borrowers will pay in respect
thereof and the range of the principal amount of the Senior
Subordinated Notes which Borrowers anticipate will be so redeemed or
purchased, (B) as of the date of any such redemption or purchase or
payments in respect thereof and after giving effect thereto, the
aggregate amount of the Excess Availability of Borrowers shall be
not less than $4,000,000 and (C) as of the date of any such
redemption or purchase or payment in respect thereof and after
giving effect thereto, no Default or Event of Default shall exist or
have occurred and be continuing; and (ii) notwithstanding anything
set forth in clause
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(i) of this Section 9.9(f)(v), Borrowers may redeem or purchase
Senior Subordinated Notes for aggregate consideration of not more
than $10,000,000 with the proceeds of loans made to Borrowers by
Cohanzick High Yield pursuant to the terms of the Cohanzick Loan
Documents, provided, that: (x) Borrowers shall give to Agent written
notice thereof no less than two (2) Business Days prior to
Borrowers' proposed redemption or purchase of all or any part of
such Indebtedness, which notice shall specify the maximum amount
that Borrowers will pay in respect thereof and the range of the
principal amount of the Senior Subordinated Notes which Borrowers
anticipate will be so redeemed or purchased, (y) as of the date of
any such redemption or purchase or any payment in respect thereof
and for the two (2) consecutive Business Days immediately prior to
such date, the aggregate amount of the Excess Availability of
Borrowers shall be not less than $2,000,000 and (z) as of the date
of any such redemption or purchase or payment in respect thereof and
after giving effect thereto, no Default or Event of Default shall
exist or have occurred and be continuing."
2.2 Section 9.9 of the Loan Agreement is hereby amended by deleting
the word "and" appearing at the end of Section 9.9(l), replacing the period
appearing at the end of Section 9.9(m) with "; and", and adding a new Section
9.9(n) as follows:
"(n) the Cohanzick Debt evidenced by or arising under the Cohanzick
Loan Documents (as in effect on the date hereof or as amended in
accordance with clause (v) below), provided, that:
(i) the principal amount of such Indebtedness shall not exceed
$7,000,000, less the aggregate amount of all repayments, repurchases
or redemptions thereof, whether optional or mandatory, plus interest
thereon at the rate provided in the Cohanzick Loan Documents as in
effect on the date hereof,
(ii) as of the date of the Cohanzick Loan Agreement, no default, or
event which with notice or passage of time or both would constitute
an event of default has occurred under the Cohanzick Loans
Documents,
(iii) Agent shall have received true, correct and complete copies of
all of the Cohanzick Loans Documents, as executed and delivered by
the parties thereto,
(iv) Borrowers shall not, directly or indirectly, make, or be
required to make, any payments in respect of such Indebtedness,
except, that, Borrowers may (A) make regularly scheduled payments
(as set forth in Section 3 of the Cohanzick Loan Agreement) of
interest in respect of the Cohanzick Debt in accordance with the
terms of the Cohanzick Loan Documents as in effect on the date
hereof and (B) prepay (as set forth in Section 2 of the Cohanzick
Loan Agreement) all or any portion of the principal amount of the
Cohanzick Debt at any time, or from time to time, after December 31,
2004; provided, that, at the time of and after giving effect to such
prepayment, (x) the aggregate amount of the Excess Availability of
Borrowers shall be not less than $4,000,000 and (y) no Default or
Event of Default shall have occurred and be continuing;
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(v) Borrowers shall not, directly or indirectly, (A) amend, modify,
alter or change in any material respect any of the material terms of
such Indebtedness or any of the Cohanzick Loan Documents as in
effect on the date hereof, except, that, Borrowers may, after prior
written notice to Agent, amend, modify, alter or change the terms
thereof so as to extend the maturity thereof or defer the timing of
any payments in respect thereof, or to forgive or cancel any portion
of such Indebtedness other than pursuant to payments thereof, or to
reduce the interest rate or any fees in connection therewith, or to
release any liens on or security interests in any assets or
properties of Borrowers, or (B) redeem, retire, defease, purchase or
otherwise acquire such Indebtedness, or set aside or otherwise
deposit or invest any sums for such purpose, except as permitted in
clause (iv) above, and
(vi) Borrowers shall furnish to Agent all notices of default or
demands for payment in connection with such Indebtedness either
received by the Borrowers or on their behalf promptly after the
receipt thereof, and all such notices or demands sent by any
Borrower or on its behalf concurrently with the sending thereof, as
the case may be;"
2.3 Section 9.10 of the Loan Agreement is hereby amended by deleting
the word "and" appearing at the end of Section 9.10(j), replacing the period
appearing at the end of Section 9.9(k) with "; and", and adding a new Section
9.9(l) as follows:
"(l) any purchase or repurchase by the Borrowers of all or any part
of the Indebtedness evidenced by the Senior Subordinated Note
Indenture (as in effect on the date hereof or as permitted to be
amended pursuant to the terms hereof) that is permitted pursuant to
Section 9.9(f)(v) of this Loan Agreement."
SECTION 3. Waivers.
3.1 Subject to the terms and conditions set forth herein and solely
in connection with the financing of Borrowers by Cohanzick High Yield as set
forth in the Cohanzick Loan Documents, as in effect on the date hereof, Agent,
Co-Agent and Lenders hereby waive (a)Borrowers' obligation to comply with the
conditions set forth in Section 2.6(b) of the Loan Agreement in respect of the
incurrence of Indebtedness permitted under Section 9.9(n) of the Loan Agreement,
(b) the provisions set forth in Section 9.9(h) of the Loan Agreement and (c) the
provision set forth in Section 2.6(b)(iii) of the Loan Agreement.
3.2 The Agent, Co-Agent and the Lenders hereby acknowledge that the
Borrowers are entering into a waiver and consent with respect to the Cohanzick
Debt and the Term Loan Lender Agreements on the terms set forth in that certain
Waiver and Consent dated the date hereof among the Borrowers and Term Loan
Agent, and consent thereto for all purposes in accordance with the provisions of
Section 9.9(e)(v) of the Loan Agreement. The Agent, the Co-Agent and the Lenders
further confirm their consent to Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ and Amendment
No. 3 to the Term Loan Lender Agreements.
3.3 Agent has not waived, is not by this Agreement 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.
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The foregoing waiver shall not be construed as a bar to or a waiver of any Event
of Default on any future occasion and shall not constitute a waiver, express or
implied, of any of the rights and remedies of Agent arising under the terms of
the Loan Agreement or any other Financing Agreements on any future occasion or
otherwise.
SECTION 4. Additional Events of Default. The parties hereto acknowledge, confirm
and agree that the failure of any Borrower to comply with any of the covenants,
conditions and agreements contained herein or in any other agreement, document
or instrument at any time executed by any Borrower in connection herewith shall
constitute an Event of Default under the Financing Agreements.
SECTION 5. Representations and Warranties. Borrowers, jointly and severally,
represent, warrant and covenant with and to Agent and Lenders as follows, which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof, the truth and accuracy of, or compliance with
each, together with the representations, warranties and covenants in the other
Financing Agreements, being a continuing condition of the making of any Loans by
Lenders to Borrowers:
5.1 As of the date hereof and after giving effect to this Amendment
No. 3, no Default or Event of Default has occurred and is continuing.
5.2 Amendment No. 3 has been duly executed and delivered by
Borrowers and is in full force and effect as of the date hereof and the
agreements and obligations of Borrowers contained herein constitute legal, valid
and binding obligations of Borrowers enforceable against Borrowers in accordance
with their respective terms.
SECTION 6. Conditions Precedent. This Amendment No. 3 shall be effective as of
September 3, 2004 but only upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent:
6.1 Agent shall have received an original of this Amendment No. 3,
duly authorized, executed and delivered by each Borrower; and
6.2 no Default or Event of Default shall exist or have occurred and
be continuing (after giving effect to the amendments and waivers set forth in
this Amendment No. 3).
SECTION 7. General.
7.1 Except as modified pursuant hereto, no other changes or
modifications to the Financing Agreements are intended or implied and in all
other respects the Financing Agreements are hereby specifically ratified,
restated and confirmed by all parties hereto as of the date hereof. To the
extent of conflict between the terms of this Amendment No. 3 and the Financing
Agreements, the terms of this Amendment No. 3 shall control.
7.2 The parties hereto shall execute and deliver such additional
documents and take such additional action as may be necessary to effectuate the
provisions and purposes of this Amendment No. 3.
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7.3 The rights and obligations hereunder of each of the parties
hereto shall be governed by and interpreted and determined in accordance with
the laws of the State of New York, but excluding any principles of conflicts of
law or other rule of law that would result in the application of the law of any
jurisdiction other than the laws of the State of New York.
7.4 This Amendment No. 3 is binding upon and shall inure to the
benefit of Agent, Lenders and Borrowers and their respective successors and
assigns.
7.5 The execution of this Amendment No. 3 by the Agent and Co-Agent
represents the consent and authorization of the Required Lenders under the Loan
Agreement with respect to the matters set forth herein.
7.6 This Amendment No. 3 may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original
but all of which when taken together shall constitute one and the same
instrument. In making proof of this Amendment No. 3, 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 No. 3
by telefacsimile shall have the same force and effect as delivery of an original
executed counterpart of this Amendment No. 3. Any party delivering an executed
counterpart of this Amendment No. 3 by telefacsimile also shall deliver an
original executed counterpart of this Amendment No. 3, but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment No. 3 as to such party or
any other party.
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IN WITNESS WHEREOF, Agent, Lenders and Borrowers have caused this
Amendment No. 3 to be duly executed as of the day and year first above written.
LEXINGTON PRECISION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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LEXINGTON RUBBER GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: President
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AGREED:
CONGRESS FINANCIAL CORPORATION,
as Agent and Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
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Title: Vice President
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THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
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