EXHIBIT 10-4
AMENDMENT NO. 5 TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 5 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT, dated
as of June 30, 2005, by and among Lexington Precision Corporation, a Delaware
corporation ("LPC"), Lexington Rubber Group, Inc., a Delaware corporation ("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 Wachovia
Bank, National Association, a national banking association, (as successor by
merger to Congress Financial 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, Amendment No. 2 to Amended and
Restated Loan and Security Agreement, dated as of August 16, 2004, by and among
Borrowers, Agent and Lenders, Amendment No. 3 to Amended and Restated Loan and
Security Agreement, dated as of September 3, 2004, by and among Borrowers, Agent
and Lenders and Amendment No. 4 to Amended and Restated Loan and Security
Agreement, dated as of January 27, 2005, 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. 5, 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 Defined Terms. For purposes of this Amendment No. 5, 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.
1.2 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. 5" shall mean this Amendment No. 5 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.
SECTION 2. Amendments to the Loan Agreement.
2.1 Special Reserve. Section 1.128 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"1.128 "Special Reserve" shall mean the Reserve in the amount equal
to $1,000,000.
2.2 Minimum EBITDA. As of December 1, 2004, Section 9.18 of the Loan
Agreement is hereby deleted in its entirety and replaced with the following:
"9.18 Minimum EBITDA.
(a) The EBITDA of Borrowers (on a consolidated basis) for the
immediately preceding twelve (12) consecutive months (treated as a
single accounting period) as of the end of each month set forth
below shall be not less than the amount set forth below with respect
to such month:
Month Minimum EBITDA
----- --------------
December 2004 $11,500,000
January 2005 $11,500,000
February 2005 $11,500,000
March 2005 $11,500,000
April 2005 $12,000,000
May 2005 $12,500,000
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June 2005 $12,000,000
July 2005 $12,000,000
August 2005 $12,500,000
September 2005 $12,500,000
October 2005 $12,500,000
November 2005 $13,000,000
December 2005 $13,500,000
January 2006 $13,500,000
February 2006 $13,500,000
March 2006 and as of the end of $15,000,000
each month thereafter for the 12
months then ended
2.3 Fixed Charge Coverage Ratio. Section 9.19 of the Loan Agreement
is hereby deleted in its entirety and replaced with the following:
"The Fixed Charge Coverage Ratio of Borrowers (on a consolidated
basis) for the immediately preceding twelve (12) consecutive months (treated as
a single accounting period) as of the last day of each fiscal quarter set forth
below shall be not less than the ratio set forth below with respect to such
fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
December 31, 2004 0.55:1
March 31, 2005 0.60:1
June 30, 2005 0.75:1
September 30, 2005 0.75:1
December 31, 2005 0.85:1
March 31, 2006 0.90:1
June 30, 2006 and the last day of 1.00:1"
each fiscal quarter thereafter
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SECTION 3. 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 4. 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:
4.1 As of the date hereof and after giving effect to this Amendment
No. 5, no Default or Event of Default has occurred and is continuing.
4.2 Amendment No. 5 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 5. Conditions Precedent. This Amendment No. 5 shall be effective as of
the date hereof but only upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Agent:
5.1 Agent shall have received an original of this Amendment No. 5,
duly authorized, executed and delivered by each Borrower;
5.2 Agent shall have received a fully-executed copy of an amendment
to the Term Loan Lender Agreements, in form and substance satisfactory to Agent;
5.3 Agent shall have received, in form and substance satisfactory to
Agent, a consent to the transactions set forth in this Amendment No. 5 duly
authorized, executed and delivered by Ableco, as Term Loan Lender; and
5.4 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. 5).
SECTION 6. Consent. Agent and Lenders by their signatures below hereby consent
to Borrowers entering into Amendment No. 5 to Loan and Security Agreement
between Borrowers and Term Loan Lender, in substantially the form annexed hereto
as EXHIBIT A.
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
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the date hereof. To the extent of conflict between the terms of this Amendment
No. 5 and the Financing Agreements, the terms of this Amendment No. 5 shall
control.
7.2 The parties hereto shall execute and deliver such additional
documents and take such additional actions as may be necessary to effectuate the
provisions and purposes of this Amendment No. 5.
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. 5 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. 5 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. 5 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. 5, 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. 5
by telefacsimile shall have the same force and effect as delivery of an original
executed counterpart of this Amendment No. 5. Any party delivering an executed
counterpart of this Amendment No. 5 by telefacsimile also shall deliver an
original executed counterpart of this Amendment No. 5, but the failure to
deliver an original executed counterpart shall not affect the validity,
enforceability, and binding effect of this Amendment No. 5 as to such party or
any other party.
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IN WITNESS WHEREOF, Agent, Lenders and Borrowers have caused this
Amendment No. 5 to be duly executed as of the day and year first above written.
LEXINGTON PRECISION CORPORATION
By :/s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Chairman
LEXINGTON RUBBER GROUP, INC.
By :/s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Chairman
------------------------------
AGREED:
WACHOVIA BANK, NATIONAL ASSOCIATION
(successor by merger to Congress Financial Corporation),
as Agent and Lender
By: /s/ Xxxxxxx X. Xxxx
-------------------
Title: VP
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Lender
By: /s/ Xxxxxx Xxxxx XxXxxxxx
-------------------------
Title: Vice President
ABLECO FINANCE LLC,
as Lender
By: Xxx Xxxx
Title: SVP
