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EXHIBIT 10-98
SIXTH
AMENDED AND RESTATED
PROMISSORY NOTE
$3,468,042 December 30, 1999
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a Delaware
corporation (the "Debtor"), hereby unconditionally promises to pay to the order
of CONGRESS FINANCIAL CORPORATION, a Delaware corporation, as successor by
merger to Congress Financial Corporation, a California corporation (the
"Payee"), at the offices of Payee at 1133 Avenue of the Americas, New York, New
York 10036, or at such other place as the Payee or any holder hereof may from
time to time designate, the principal sum of THREE MILLION FOUR HUNDRED
SIXTY-EIGHT THOUSAND AND FORTY-TWO DOLLARS ($3,468,042) in lawful money of the
United States of America and in immediately available funds, in fifty-one (51)
consecutive monthly installments (or earlier as hereinafter referred to) on the
first day of each month, commencing January 1, 2000, of which the first fifty
(50) installments shall each be in the amount of SIXTY-EIGHT THOUSAND DOLLARS
($68,000), and the last (i.e. fifty-first (51st)) installment shall be in the
amount of the entire unpaid balance of this Note.
Debtor hereby further promises to pay interest to the order of Payee on
the unpaid principal balance hereof at the Interest Rate. Such interest shall be
paid in like money at said office or place from the date hereof, commencing on
January 1, 2000 and on the first day of each month thereafter until the
indebtedness evidenced by this Note is paid in full. Interest payable upon and
during the continuance of an Event of Default or following the effective date of
termination or non-renewal of the Financing Agreements shall be payable upon
demand. Debtor hereby further promises to pay to the order of Payee on January
1, 2000, the interest due under the terms of the LPC Fifth Restated Note (as
hereinafter defined) for the period from December 1, 1999 to and including
December 29, 1999. The amendment and restatement provided for herein shall not
effect the obligations of Debtor to pay interest under the term of the LPC Fifth
Restated Note for such period.
For purposes hereof, (a) the term "Interest Rate" shall mean, as to
Prime Rate Loans, a rate equal to the Prime Rate, and as to Eurodollar Rate
Loans, a rate of two and one-half (2 1/2%) percent per annum in excess of the
Adjusted Eurodollar Rate; provided, that, at Payee's option, the Interest Rate
shall mean a rate of two (2%) percent per annum in excess of the Prime Rate as
to Prime Rate Loans and a rate of four and one-half (4 1/2%) percent per annum
in excess of the Adjusted Eurodollar Rate as to Eurodollar Rate Loans, upon and
during the continuance of an Event of Default or following the effective date of
termination or non-renewal of the Financing Agreements, and (b) the term "Prime
Rate" shall mean the rate from time to time publicly
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announced by First Union National Bank, or its successors, as its prime rate,
whether or not such announced rate is the best rate available at such bank.
Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings assigned thereto in the Accounts Agreement (as hereinafter defined)
and the other Financing Agreements.
The Interest Rate applicable to Prime Rate Loans payable hereunder
shall increase or decrease by an amount equal to each increase or decrease,
respectively, in the Prime Rate, effective on the first day of the month after
any change in such Prime Rate, based on the Prime Rate in effect on the last day
of the month in which any such change occurs. Interest shall be calculated on
the basis of a three hundred sixty (360) day year and actual days elapsed. In no
event shall the interest charged hereunder exceed the maximum permitted under
the laws of the State of New York or other applicable law.
This Note is the "LPC Sixth Restated Note" issued pursuant to the terms
and provisions of the letter agreement re: Amendment to Financing Agreements,
dated as of the date hereof, between Debtor and Payee. The principal amount of
this Note represents the unpaid principal balance outstanding under that certain
Fifth Amended and Restated Promissory Note, dated January 28, 1999, in the
original principal sum of $6,268,005, made by Debtor to Payee (the "LPC Fifth
Restated Note"). None of the outstanding indebtedness evidenced by the LPC Fifth
Restated Note shall be deemed extinguished by Debtor's issuance or Payee's
acceptance of this Note. This Note shall be deemed to substitute for, and to
amend and restate in its entirety, the LPC Fifth Restated Note as to the
indebtedness previously evidenced thereby, and the LPC Fifth Restated Note shall
be so marked by Payee.
This Note is secured by the "Collateral" described in the Accounts
Financing Agreement [Security Agreement], dated January 11, 1990, by and between
Payee and Debtor, as amended (the "Accounts Agreement") and any agreement,
document or instrument now or at any time hereafter executed and/or delivered in
connection therewith or related thereto (the foregoing, as the same now exist or
may hereafter be amended, modified, supplemented, renewed, extended, restated or
replaced, are hereinafter collectively referred to as the "Financing
Agreements") and is entitled to all of the benefits and rights thereof and of
the Financing Agreements. At the time any payment is due hereunder, at its
option, Payee may charge the amount thereof to any account of Debtor maintained
by Payee.
If any principal or interest payment is not made when due hereunder (or
under the LPC Fifth Restated Note as provided for herein), and such failure
shall continue for three (3) days, or if any other Event of Default (as defined
in the Accounts Agreement) shall occur for any reason, or if the Financing
Agreements shall be terminated or not renewed for any reason whatsoever, then
and in any such event, in addition to all rights and remedies of Payee under the
Financing Agreements, applicable law or otherwise, all such rights and remedies
being cumulative, not exclusive and enforceable alternatively, successively and
concurrently, Payee may, at its option, declare any or all of Debtor's
obligations, liabilities and indebtedness owing to Payee under the Financing
Agreements (the "Obligations"), including, without limitation, all amounts owing
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under this Note, to be due and payable, whereupon the then unpaid balance hereof
together with all interest accrued thereon, shall forthwith become due and
payable, together with interest accruing thereafter at the then applicable rate
stated above until the indebtedness evidenced by this Note is paid in full, plus
the costs and expenses of collection hereof, including, but not limited to,
reasonable attorneys' fees.
Debtor (i) waives diligence, demand, presentment, protest and notice of
any kind, (ii) agrees that it will not be necessary for any holder hereof to
first institute suit in order to enforce payment of this Note and (iii) consents
to any one or more extensions or postponements of time of payment, release,
surrender or substitution of collateral security, or forbearance or other
indulgence, without notice or consent. Upon the occurrence of any Event of
Default and during the continuance thereof, Payee shall have the right, but not
the obligation to setoff against this Note all money owed by Payee to Debtor.
Payee shall not be required to resort to any Collateral for payment,
but may proceed against Debtor and any guarantors or endorsers hereof in such
order and manner as Payee may choose. None of the rights of Payee shall be
waived or diminished by any failure or delay in the exercise thereof.
Debtor hereby waives the right to a trial by jury and all rights of
setoff and rights to interpose counterclaims and cross-claims in any litigation
or proceeding arising in connection with this Note, the Accounts Agreement, the
other Financing Agreements, the Obligations or the Collateral, other than
compulsory counterclaims, the non-assertion of which would result in a permanent
waiver. Debtor hereby irrevocably consents to the non-exclusive jurisdiction of
the Supreme Court of the State of New York and of the United States District
Court for the Southern District of New York for all purposes in connection with
any action or proceeding arising out of or relating to this Note, the Accounts
Agreement, the other Financing Agreements, the Obligations or the Collateral and
further consents that any process or notice of motion or other application to
said Courts or any judge thereof, or any notice in connection with any
proceeding hereunder may be served (i) inside or outside the State of New York
by registered or certified mail, return receipt requested, and service or notice
so served shall be deemed complete five (5) days after the same shall have been
posted or (ii) in such other manner as may be permissible under the rules of
said Courts. Within thirty (30) days after such mailing, Debtor shall appear in
answer to such process or notice of motion or other application to said Courts,
failing which Debtor shall be deemed in default and judgment may be entered by
Payee against Debtor for the amount of the claim and other relief requested
therein.
The execution and delivery of this Note has been authorized by the
Board of Directors of Debtor.
This Note, the other Obligations and the Collateral shall be governed
by and construed in accordance with the laws of the State of New York and shall
be binding upon the successors and assigns of Debtor and inure to the benefit of
Payee and its successors, endorsees and assigns. If
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any term or provision of this Note shall be held invalid, illegal or
unenforceable, the validity of all other terms and provisions hereof shall in no
way be affected thereby.
This Note may not be changed, modified or terminated orally, but only
by an agreement in writing signed by the Payee or the holder hereof.
Whenever used herein, the terms "Debtor" and "Payee" shall be deemed to
include their respective successors and assigns.
LEXINGTON PRECISION
CORPORATION
ATTEST:
By: /s/ Warren Delano
/s/ Karen Novak ---------------------------
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Assistant Secretary Title: President
[Corporate Seal] -------------------------
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