EXHIBIT 4.5
LEXINGTON PRECISION CORPORATION
No. CUSIP: 529529 AE 9
Lexington Precision promises to pay to
or registered assigns
the principal sum of Dollars on August 1, 2009
12% Senior Subordinated Notes due August 1, 2009
Interest Payment Dates: February 1, May 1, August 1, and November 1
Record Dates: January 15, April 15, July 15, and October 15
Dated: December __, 2003
Reference is hereby made to the further provisions of this Note as attached
hereto which provisions shall have the same effect as if set forth at this
place.
WILMINGTON TRUST COMPANY, LEXINGTON PRECISION CORPORATION
as Trustee,
certifies that this is one
of the Securities referred
to in the Indenture.
By _________________________ By:______________________________
Authorized Signatory Title:
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By:______________________________
Title:
(Seal)
[The following legend is to be inserted only in the Note to be issued
to Cede & Co.:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO LEXINGTON PRECISION CORPORATION OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUIRED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
LEXINGTON PRECISION CORPORATION
12% Senior Subordinated Note due August 1, 2009
THIS NOTE, AND THE WARRANT ATTACHED HERETO, SHALL CONSTITUTE A UNIT.
THIS NOTE WILL NOT BE DETACHABLE FROM THE WARRANT UNTIL AUGUST 1, 2005,
AND THIS NOTE AND THE WARRANT WILL ONLY BE TRANSFERABLE AS A UNIT PRIOR
TO THAT TIME. IF THIS NOTE IS REDEEMED BY THE COMPANY PURSUANT TO
SECTION 5 HEREOF PRIOR TO AUGUST 1, 2005, THE ATTACHED WARRANT WILL
REVERT TO THE COMPANY FOR NO FURTHER CONSIDERATION AND WILL BE
CANCELED. THE UNIT MAY NOT BE OFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, HYPOTHECATED, MORTGAGED, ENCUMBERED OR OTHERWISE DISPOSED OF
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 8 HEREOF.
1. Interest.
LEXINGTON PRECISION CORPORATION (the "Company"), a Delaware
corporation, promises to pay interest on the principal amount of this Note at
the rate of 12% per annum for the period from December __, 2003, through the
date this Note is paid in full.
The Company will pay interest quarterly on February 1, May 1,
August 1, and November 1 of each year, commencing on February 1, 2004. Interest
on the Notes will accrue from the date of the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company
will pay interest on overdue principal at the rate per annum then in effect on
the Notes, as set forth in the preceding paragraph; it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
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2. Method of Payment.
The Company will pay interest on the Notes (except Defaulted
Interest) to the persons who are registered holders of Notes ("Noteholders" or
"Holders") at the close of business on the January 15, April 15, July 15 or
October 15 immediately preceding the next interest payment date, except for the
first interest payment which will be made to persons who are Holders at the time
of original issuance of Notes under the Indenture. Holders must surrender Notes
to a Paying Agent to collect principal payments. The Company will pay principal
and interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest by its check payable in such money. It may mail checks
for interest to a Holder's registered address.
3. Paying Agent, Registrar.
Initially, Wilmington Trust Company (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice. The Company or any of its Subsidiaries
may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of
[the date the Exchange Offer is consummated], (the "Indenture") between the
Company and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb), as amended (the
"Act"). The Notes are subject to all such terms, and Noteholders are referred to
the Indenture and the Act for a statement of such terms. The Notes are unsecured
general obligations of the Company, limited in aggregate principal amount as
provided in the Indenture. Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Indenture.
5. Optional Redemption.
The Notes are subject to redemption, as a whole or from time
to time in part, at any time (subject to the provisions of the Indenture), at
the option of the Company, on not less than 30 nor more than 60 days' prior
notice given as provided in the Indenture, at a redemption price of 100% of
principal amount, together with accrued interest to the redemption date.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each holder of Notes to be
redeemed at his registered address. The selection of Notes for any redemption
will be made by the Trustee pursuant to the terms of the Indenture. If less than
all the Notes are to be redeemed, Notes in denominations larger than $1,000 may
be redeemed in part but only in integral multiples of $1,000. On and after the
redemption date interest ceases to accrue on Notes or portions of them called
for redemption.
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7. Subordination.
The Notes are subordinated in right of payment to Senior Debt,
(as defined in the Indenture). Senior Debt does not include (a) Indebtedness of
the Company to any of its subsidiaries or Affiliates (or any interest, fees,
charges or other amounts outstanding in respect of such Indebtedness), (b) any
Indebtedness or liability for compensation to employees of the Company, or
incurred for the purchase of goods, materials or services in the ordinary course
of business and which constitutes a trade payable even if overdue (or any
interest, fees, charges or other amounts outstanding in respect of such
Indebtedness), (c) any liability for federal, state, local or other taxes owed
or owing by the Company, (d) any Indebtedness, guarantee or obligation which is
contractually subordinate or junior in right and priority of payment to the
Securities, (e) any payments or obligations in respect of any Preferred Stock,
Redeemable Stock or Exchangeable Stock, and (f) that portion of any Indebtedness
which at the time of issuance is issued in violation of this Indenture. To the
extent provided in the Indenture, Senior Debt must be paid before the Notes may
be paid. Each Noteholder by accepting a Note agrees to the subordination and
authorizes the Trustee to give it effect.
8. Denominations, Transfer, Exchange.
(a) The Notes are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000
except to the extent of fractional Notes outstanding as a result of the
Recapitalization of the Indenture or to the extent necessary to effect transfers
in whole of such fractional Notes or to issue Notes upon redemption or upon the
completion of an Asset Sale Offer or a Change of Control Offer (as such terms
are defined in the Indenture). A Holder may transfer or exchange Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Note (or portion of a Note in an integral
multiple of $1,000) selected for redemption, or transfer or exchange any Notes
for a period of 15 days before a selection of Notes to be redeemed.
(b) Prior to August 1, 2005, this Note shall only be
transferable as a Unit, together with the Warrant issued to the Holder hereof,
in connection with an exchange offer made pursuant to the Company's Amended
Offering Circular dated March 7, 2003, as amended on September 18, 2003, and as
otherwise extended, amended or supplemented.
9. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
10. Unclaimed Money.
If money held by the Trustee or the Paying Agent for the
payment of principal or interest remains unclaimed for two years, the Trustee or
Paying Agent will pay the money back to the Company at its request. After that,
Holders entitled to the money must look to the Company for payment unless an
applicable escheat or abandoned or unclaimed property law designates another
person.
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11. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the outstanding Notes, and any past default or
compliance with any provision may be waived with the consent of the Holders of a
majority in principal amount of the outstanding Notes. Without the consent of
any Noteholder, the Company may amend or supplement the Indenture, to provide
for assumption of the Company's obligations hereunder in connection with a
merger, consolidation, or transfer of assets as permitted by the Indenture or
the Notes, to cure any ambiguity, defect or inconsistency or to provide for
uncertificated Notes in addition to or in place of certificated Notes or to make
any change that does not materially adversely affect the rights of any
Noteholder.
12. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the Notes and the Indenture (and in accordance with the
terms of the Indenture), the predecessor corporation will be released from those
obligations.
13. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them, upon maturity,
redemption or otherwise; failure by the Company for 60 days after notice to it
to comply with any of its other covenants, conditions or agreements in the
Indenture or the Notes; the occurrence of an event which permits the
acceleration of the maturity of any Indebtedness in excess of $250,000; judgment
for the payment for more than $250,000 rendered against the Company or any
Subsidiary and not discharged within 60 days after such judgment becomes final
and non-appealable; and certain events of bankruptcy or insolvency. If an Event
of Default (other than an Event of Default as the result of certain events of
bankruptcy and insolvency) occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the outstanding Notes may declare all the
Notes to be due and payable immediately. If an Event of Default occurs as the
result of certain events of bankruptcy and insolvency, all the Notes shall be
due and payable immediately without any declaration or other act on the part of
the Trustee or any Holder. Noteholders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Noteholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice is in their interests. The Company is required to file
periodic reports with the Trustee as to the absence of default.
14. Sales of Assets.
The Company shall make offers to purchase Notes at a purchase
price of 100% of their principal amount plus accrued interest to the Asset Sale
Purchase Date (as defined in the Indenture) pursuant to and subject to the
conditions set forth in the Indenture within 270 days following the consummation
of an Asset Sale (as defined in the Indenture) (or in the case of Net
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Available Cash (as defined in the Indenture) from the conversion of securities,
within 270 days after the receipt of such cash).
15. Change of Control.
The Company shall make offers to purchase Notes at a purchase
price of 100% of their principal amount plus accrued interest to the Change of
Control Purchase Date (as defined in the Indenture) pursuant to and subject to
the conditions set forth in the Indenture in the event of a Change of Control
(as defined in the Indenture).
16. Trustee Dealings with Company.
Subject to the provisions of the Act and regulations
promulgated thereunder, the Trustee under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its affiliates, and may otherwise deal with the
Company or its affiliates, as if it were not Trustee.
17. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Notes or the Indenture or for any claim based on, in respect of or by reason
of, such obligations or their creation. Each Noteholder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), JT TEN (= joint tenant with right of survivorship and
not as tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
20. Inspection of Indenture and Requests for Copies.
Holders may inspect the Indenture at the principal executive
office of the Company.
The Company will furnish to any Noteholder upon written
request and without charge a copy of the Indenture. Requests may be made to:
Lexington Precision Corporation
767 Third AVE
New York, NY 10017-2023
Attention: President
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ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
______________________________
______________________________
(Insert assignee's social
security or tax ID number)
______________________________
______________________________
______________________________
______________________________
(Print or type assignee's
name, address and zip code)
and irrevocably appoint _________________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your signature:___________________________________________________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee:____________________________________________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you the holder want to elect to have this Note purchased by the Company
pursuant to Section 4.07 or 4.08 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Note purchased by the Company,
state the amount: $____.*
*As set forth in the Indenture, any purchase pursuant to
Section 4.07 is subject to proration in the event the offer is oversubscribed.
Date: __________________ Your Signature: _____________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:____________________________________________________________