EXHIBIT 4.6
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. NO SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO, AN OPINION OF COUNSEL FOR THE
HOLDER, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR RECEIPT OF A
NO-ACTION LETTER FROM THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES SHALL NOT BE TRANSFERRED OR PLEDGED EXCEPT IN ACCORDANCE
WITH SECTION VI OF A CERTAIN EXCHANGE AGREEMENT DATED AS OF DECEMBER
18, 2003 WITH THE COMPANY.
THIS NOTE, AND THE WARRANT ATTACHED HERETO, SHALL CONSTITUTE A JUNIOR
NOTE 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 4 HEREOF PRIOR TO AUGUST 1, 2005, THE ATTACHED
WARRANT WILL REVERT TO THE COMPANY FOR NO FURTHER CONSIDERATION AND
WILL BE CANCELED. THE JUNIOR NOTE UNIT MAY NOT BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED, MORTGAGED, ENCUMBERED OR
OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 6 HEREOF.
LEXINGTON PRECISION CORPORATION
13% Junior Subordinated Note due November 1, 2009
$346,667.00
Dated: December 18, 2003
New York, New York
FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a Delaware
corporation (the "Company"), hereby promises to pay to MICHAEL A. LUBIN the
principal sum of THREE HUNDRED FORTY SIX THOUSAND SIX HUNDRED SIXTY SEVEN
DOLLARS (U.S.$ 346,667.00) on November 1, 2009, together with accrued interest
thereon as herein provided.
1. Interest.
The Company promises to pay interest on the principal amount of this
Note at the rate of 13% per annum from the date of this Note until the principal
amount of this Note shall have been paid in full. The Company will pay interest
quarterly on February 1, May 1, August 1 and November 1 of each year (each, an
"Interest Payment Date"), commencing on February 1, 2004. Interest shall be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
2.1. The Company shall pay interest on each Note to the person who
is the registered holder of a Note ("Noteholder" or "Holder") at the close of
business on the January 15, April 15, July 15 or October 15 preceding the
Interest Payment Date. The Holder must surrender this Note to the Company at its
offices at 767 Third Avenue, New York, New York 10017-2023 or such other address
as the Company may specify in a notice mailed or delivered to the registered
address of the Holder hereof (the "Designated Office") to collect principal
payments. The Company shall pay principal and interest in money of the United
States of America that at the time of payment is legal tender for the payment of
public and private debts. The Company may, however, pay principal and interest
by its check payable in such money. It may mail an interest check to the
Holder's registered address. In the event this Note is issued or held in two or
more units, such units shall hereinafter be collectively referred to as the
"Notes" and individually as a "Note", and in the event this Note shall be the
only Note outstanding, the term "Notes" as used herein shall refer only to this
Note. Any payment of interest or principal which is due on a Saturday, Sunday or
holiday shall be payable on the next succeeding business day.
Each Note issued by the Company upon transfer of, in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
2.2. Notwithstanding subparagraph 2.1 hereof, the Company will make
payments of principal and interest by check payable to the order of the Holder
of this Note duly mailed or delivered to its registered address, or, if
requested, by wire transfer of federal or other immediately available funds to
its account at any bank or trust company in the United States of America. Before
any such Note is transferred in accordance with the terms hereof, the Holder
will make or cause to be made a notation thereon of principal payments
previously made thereon and of the date to which interest thereon has been paid.
3. Subordination.
3.1. The Company covenants and agrees, and the Holder of this Note
by such Holder's acceptance hereof likewise covenants and agrees, that the
payment of the principal of and interest on the Notes is subordinated and
subject in right of payment, to the extent and in the manner provided in this
paragraph 3, to the prior payment in full of all Senior Debt (as hereinafter
defined).
This paragraph 3 shall constitute a continuing offer to all persons
who, in reliance upon the provisions of this paragraph 3, become holders of, or
continue to hold, Senior Debt, and such provisions are made for the benefit of
the holders of Senior Debt, and such holders are made obligees hereunder and
they and/or each of them may enforce such provisions.
3.2. Upon the occurrence of any default in the payment of
principal, premium, if any, or interest then due and payable in respect of any
Senior Debt (whether at maturity, upon redemption, by declaration, or
otherwise), no direct or indirect payment (in cash, property, securities, by
set-off, or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest on the Notes, or in respect of any
redemption, retirement, purchase or other acquisition of any of the Notes, and
no Holder of any Note shall be entitled to demand or receive any such payment
(any of the foregoing payments or actions being
referred to in this paragraph 3 as a "Payment"), unless and until such default
has been waived or cured or all amounts then due and payable for principal of,
premium, if any, and interest on all Senior Debt shall have been paid in full or
provision therefor in cash, in cash equivalents or in accordance with the terms
of such Senior Debt and the agreements, if any, under which such Senior Debt was
issued or created, shall have been made.
The Company may not make any Payment if:
(a) a default or event of default under any agreement governing
Senior Debt (other than a default or event of default relating to payment of
principal, premium, if any, or interest, either at maturity, upon redemption, by
declaration, or otherwise) occurs and is continuing that permits the holders of
such Senior Debt to accelerate its maturity (whether or not such acceleration
has occurred); and
(b) the Company receives a notice of such default or event of
default from a person who may give such notice (including, without limitation, a
holder of such Senior Debt, a representative of any such holder, or a trustee
for the benefit of holders of such Senior Debt).
Notwithstanding the provisions of this paragraph 3, the Company may
make Payments on the Notes when:
(i) the default or event of default is cured or
waived; or
(ii) 90 days pass after the earliest such notice
is given, with respect to such default or event of default so
long as this paragraph 3 otherwise permits a Payment at that
time.
In the event that any Noteholder receives any Payment at a time when
such Noteholder has actual knowledge such payment is prohibited by this
paragraph 3, such Payment shall be held by such Noteholder in trust for the
benefit of, and shall be paid over and delivered forthwith, upon written
request, to the holders and owners of Senior Debt as their interests may appear
or their agent or representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Debt may have been issued, as their
respective interests may appear, for application to the payment of all Senior
Debt remaining unpaid to the extent necessary to pay such Senior Debt in full in
accordance with its terms, after giving effect to any concurrent payment or
distribution to or for the holders and owners of Senior Debt.
The Company shall endeavor to give prompt written notice to each
Noteholder of any default in payment of principal of or interest on any Senior
Debt.
3.3. Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation, or reorganization of the Company (whether
in bankruptcy, insolvency, or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise):
(a) the holders of all Senior Debt shall first be entitled to
receive payments in full of the principal thereof and interest due thereon
before the Holders of the Notes are entitled to receive any payment on account
of the principal of or interest on the Notes;
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the Holders
of the Notes would be entitled except for the provisions of this paragraph 3,
shall be paid by the liquidating trustee or agent or other person making such
payment or distribution directly to the holders of Senior Debt or their
representative, or to the trustee under the indenture under which Senior Debt
may have been issued (pro rata as to each such holder, representative or trustee
on the basis of the respective amounts of unpaid Senior Debt held or represented
by each), to the extent necessary to make payment in full of all Senior Debt
remaining unpaid, after giving effect to any concurrent payment or distribution
or provision therefor to the holders of such Senior Debt; and
(c) in the event that, notwithstanding the foregoing provisions of
this subparagraph 3.3, any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, shall be
received by the Holders of the Notes on account of principal of or interest on
the Notes before all Senior Debt is paid in full, or effective provision made
for its payment, such payment or distribution shall be received and held in
trust for and shall be paid over to the holders of the Senior Debt remaining
unpaid or unprovided for or their representative, or to the trustee under any
indenture under which such Senior Debt may have been issued (pro rata as
provided in clause (b) of this subparagraph 3.3), for application to the payment
of such Senior Debt until all such Senior Debt shall have been paid in full,
after giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Debt.
Upon any payment or distribution of assets of the Company referred to
in this paragraph 3, the Holders shall be entitled to rely upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Holders, for the purpose
of ascertaining the person entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amounts
thereof, the amount or amounts paid or distributed thereon, and all other facts
pertinent thereto or to this paragraph 3. In the event that the Noteholder
determines, in good faith, that further evidence is required with respect to the
right of any person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this paragraph 3, such Noteholder may request such
person to furnish evidence to the reasonable satisfaction of such Noteholder as
to the amount of Senior Debt held by such person, as to the extent to which such
person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the rights of such person under this paragraph 3, and
if such evidence is not furnished, such Noteholder may defer any payment to such
person pending judicial determination as to the right of such person to receive
such payment.
The Company shall give prompt written notice to any Noteholder of any
dissolution, winding up, liquidation, or reorganization of the Company.
3.4. Subject to the payment in full of all Senior Debt, the Holders
of the Notes shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that by its express terms is subordinated to Senior
Debt to the same extent as the Notes are subordinated and which is entitled to
like rights of subrogation) to the rights of the holders of Senior Debt to
receive payments or distributions of assets of the Company applicable to the
Senior Debt until all amounts owing on the Notes shall be paid in full, and for
the purpose of such subrogation no payments or distributions to the holders of
the Senior Debt by or on behalf of the Company or by
or on behalf of the Holders of the Notes by virtue of this paragraph that
otherwise would have been made to the Holders of the Notes shall, as between the
Company, its creditors other than holders of Senior Debt and the Holders of the
Notes, be deemed to be payment by the Company to or on account of the Senior
Debt, it being understood that the provisions of this paragraph 3 are and are
intended solely for the purpose of defining the relative rights of the Holders
of the Notes, on the one hand, and the holders of the Senior Debt, on the other
hand.
3.5. Nothing contained in this paragraph 3 or elsewhere in this
Note is intended to or shall impair, as between the Company, its creditors other
than holders of Senior Debt and the Holders of the Notes, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the Notes
the principal of and interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders of the Notes and creditors of the Company
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Holder of any Note from exercising all remedies otherwise permitted
by applicable law upon default under this Note, subject to the rights, if any,
under this paragraph 3 of the holders of Senior Debt in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Nothing contained in this paragraph 3 or elsewhere in this Note is
intended to or shall affect the obligation of the Company to make, or prevent
the Company from making, at any time except during the pendency of any
dissolution, winding up, liquidation or reorganization proceeding, and except
during the continuance of any event of default specified in this paragraph 3
that has not been cured or waived, payments at any time of the principal of or
interest on the Notes.
3.6. No right of any present or future holder of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act (other than a waiver thereof enforceable against such holder) or
failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Note, regardless of any knowledge thereof
that any such holder may have or be otherwise charged with.
3.7. The failure to make a payment on account of principal or
interest by reason of any provision in this paragraph 3 shall not be construed
as preventing the occurrence of an Event of Default under paragraph 9 of this
Note.
4. Optional Redemption.
4.1. The Notes are subject to redemption, as a whole or, from time
to time, in part (in units of $1,000 or integral multiples thereof), at the
option of the Company, on not less than 30 nor more than 60 days' prior notice.
Each Note shall be redeemable at a redemption price equal to 100% of the
principal amount to be redeemed plus accrued interest to the date of redemption.
4.2. In the event that at the time the Company elects to make a
redemption pursuant to this paragraph 4, there is more than one Note
outstanding, the aggregate principal amount of such redemption shall be
allocated among the then outstanding Notes in proportion, as nearly as
practicable, to the respective unpaid principal amounts of such Notes.
4.3. Notice of redemption will be mailed at least 15 days but not
more than 60 days before the redemption date to each holder of Notes to be
redeemed at his registered address specifying: (i) the redemption date; (ii) the
redemption price; (iii) that Notes to be redeemed must be surrendered to the
Company to collect the redemption price; (iv) that interest on the Notes called
for redemption ceases to accrue on and after the redemption date; and (v) the
aggregate principal amount of each Note to be redeemed and the registration or
serial number of such Note. The selection of Notes for any redemption will be
made by the Company. On and after the redemption date, interest ceases to accrue
on Notes or portions of them called for redemption.
4.4. Once notice of redemption is mailed, Notes called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Company, such Notes shall be paid at the redemption
price plus accrued interest to the redemption date.
4.5. Upon surrender of a Note that is redeemed in part, the Company
shall issue to the Holder thereof a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
5. Covenants.
The Company covenants and agrees that so long as the Notes remain
outstanding:
5.1. The Company shall pay the principal of and interest on the
Notes on the dates and in the manner provided in the Notes.
5.2. The Company shall pay, to the extent permitted by applicable
law, interest on overdue principal at 2% per annum above the rate borne by the
Notes; it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
5.3. The Company shall deliver to the Holders within 15 days after
it files them with the U.S. Securities and Exchange Commission ("SEC") copies of
the annual reports and of all other information, documents, and other reports
(or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) that the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
5.4. The Company shall cause its annual report to stockholders and
any quarterly or other financial reports furnished by it to stockholders to be
mailed to the Holders at their addresses appearing in the register of Notes
maintained by the Company. If the Company is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, the Company
will cause its financial statements, including any notes thereto, and a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations", to be mailed to the Holders within 90 days after the end of each
fiscal year and within 45 days after the end of each of the first three fiscal
quarters of each fiscal year.
5.5. The Company shall deliver to the Holders within four months
after the end of each fiscal year of the Company, commencing with the fiscal
year ending December 31, 2003, an Officers' Certificate stating that:
(a) the signing officers have supervised a review of the
activities of the Company and its Subsidiaries (as hereinafter defined) during
the preceding fiscal year to determine whether the Company has observed and
performed its obligations under the Notes;
(b) to the best knowledge of each officer signing such
certificate, the Company has observed and performed all of its covenants
contained herein and is not in default in the observance and performance of any
of the terms, provisions and conditions of the Notes (or if the Company is in
such default, specifying those defaults of which he has knowledge and the nature
thereof); and
(c) to the best knowledge of each such signing officer, no event
has occurred and is continuing that would prohibit payment of the principal or
interest on the Notes.
5.6. The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, any other person unless (i)
such other person is a corporation organized or existing under the laws of the
United States or a state thereof, (ii) such person expressly assumes all the
obligations of the Company under the Notes, and (iii) immediately after such
transaction no Default exists. Thereafter all such obligations of the
predecessor corporation shall terminate. Upon request of the Holders, the
Company shall deliver to the Holders prior to any such proposed transaction an
Officers' Certificate that such proposed transaction complies with the
provisions of this paragraph.
6. Denomination, Transfer, Exchange.
6.1. The Notes are issuable only in registered form without coupons
in denominations of $1,000 and integral multiples of $1,000, except that, to the
extent necessary to issue Notes pursuant to the Exchange Agreement dated as of
December 18, 2003 among the Company and the holders of the Notes (the "Exchange
Agreement"), Notes may be issued in a fractional denomination of $1,000. The
registered Holder of a Note may be treated as the owner of it for all purposes
(including, without limitation, for the purpose of receiving payment of
principal of, premium, if any, and interest on such Note) and the Company shall
not be affected by any notice to the contrary. The Notes may not be transferred
or otherwise disposed of except to a registered assign and otherwise in
accordance with the terms of the Exchange Agreement. The Company 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 hereby. The
Company 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.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note and, in the case of any such loss, theft
or destruction, upon delivery of a bond of indemnity satisfactory to the
Company, or in the case of any such mutilation, upon surrender and cancellation
of this Note, the Company will issue a new Note of like tenor as if the lost,
stolen, destroyed, or mutilated Note were then surrendered for exchange in lieu
of such lost, stolen, destroyed, or mutilated Note.
6.2. If (a) at any time any Holder or Holders of not less than 51%
of the aggregate principal amount of Notes then outstanding shall so request of
the Company in a written notice delivered to the Company, whether or not there
is more than one holder of the Notes, or (b) in connection with any registration
of Notes under the Securities Act of 1933, as amended (the
"Securities Act"), the Company deems it necessary or appropriate to qualify an
indenture with respect to the Notes under the Trust Indenture Act of 1939, as
amended (the "TIA"), the Company will, as soon as reasonably practicable,
execute and deliver to a bank or trust company organized under the laws of the
United States of America or any state thereof having an office in New York, New
York, as trustee, satisfactory to the Company, and having a capital surplus of
at least $100,000,000 (if there be such an institution willing, qualified and
able to accept the trust upon reasonable or customary terms), an indenture of
trust (the "Indenture"), providing for the issuance, and will authorize the
issuance thereunder as herein provided, of a principal amount of new 13% junior
subordinated notes of the Company (the "New Notes"), equal in aggregate
principal amount to the aggregate principal amount of all Notes outstanding and
unpaid at the time of such authorization, bearing interest at the same rate as
such outstanding Notes and in all other respects substantially similar to, and
having substantially the same rights and privileges carried by, the Notes.
The Indenture and the New Notes to be issued thereunder shall, insofar
as may be appropriate, respectively embody the substance of all covenants,
conditions and provisions of the Notes, together with such other provisions as
may be desirable (not inconsistent with the provisions of the Notes) and as are
usually contained in indentures of similar issuers providing for notes of
comparable aggregate principal amount and maturity, or are usually contained in
such notes.
At the time of the execution of the Indenture, the Company shall cause
counsel (which may include an employee of or counsel to the Company or the
trustee under the Indenture) to furnish to the Noteholders and to the trustee
under the Indenture an opinion to the effect that (i) the Indenture has been
duly authorized, executed and delivered by the Company, and is a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, and (ii) the New Notes have been duly authorized, and
when executed, authenticated and delivered as provided in the Indenture, will
constitute, legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
After the execution and delivery of the Indenture, upon surrender of
any Note by the holder thereof, the Company will deliver to such holder, in
exchange therefor, New Notes, in the same principal amount and with the same
maturities as the Notes surrendered, in such authorized form and denomination as
such holder may elect, and bearing interest from the date to which interest
shall have been paid on the Notes so surrendered. The holders of the Notes agree
to surrender such Notes and to otherwise cooperate with the Company in
connection with any qualification of the Indenture under the TIA. Upon issuance
of New Notes pursuant to the Indenture, the Company shall apply the provisions
set forth in Sections V, VI, and 8.1 of the Exchange Agreement, provided that in
so applying such provisions, the term "Notes" be deemed to include the term "New
Notes".
7. Amendment, Supplement, Waiver.
This Note and any other Notes outstanding may be amended (or any
provision hereof, waived) with the written consent of the Company and the Holder
or Holders of at least a majority in aggregate principal amount of the Notes
then outstanding; provided, however, that no such amendment or waiver shall (i)
change the fixed maturity of any Note, the rate or the time of payment of
interest thereon or the principal amount thereof without the written consent of
the
Holder of the Note so affected, (ii) reduce the aforesaid outstanding principal
amount of Notes, the Holders of which are required to consent to any such
amendment or waiver, without the written consent of the Holders of all the Notes
then outstanding, or (iii) increase the outstanding principal amount of the
Notes, the Holders of which may declare the Notes to be due and payable without
the written consent of the Holders of all Notes then outstanding. The Company
and each Holder of a Note then or thereafter outstanding shall be bound by any
amendment or waiver effected in accordance with the provisions hereof, whether
or not such Note shall have been marked to indicate such modification, but any
Note issued thereafter shall bear a notation as to any such modification.
Promptly after obtaining the written consent of the Holders herein provided, the
Company shall transmit a copy of the instrument evidencing such modification to
all of the Holders of the Notes then outstanding.
8. Defaults and Remedies.
8.1. An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on any Note
when the same becomes due and payable and the default continues for a period of
30 days;
(b) the Company defaults in the payment of the principal of any
Note when the same becomes due and payable at maturity, upon redemption or
otherwise;
(c) the Company fails to comply with any of its other covenants,
conditions or agreements in the Notes and the default continues for the period
and after the notice specified below;
(d) an event or events of default, as defined in any one or more
mortgages, indentures or instruments under which there may be issued, or by
which there may be secured or evidenced, any Debt of the Company or any
Subsidiary (other than the Company' 12 3/4% Senior Subordinated Notes due
February 1, 2000), whether such Debt now exists or shall hereafter be created,
shall happen which permits the holders of such Debt to declare an aggregate
principal amount of at least $250,000 of such Debt to become due and payable
prior to the date on which it would otherwise have become due and payable and
such event of default shall not have been cured in accordance with the
provisions of such instrument, or such Debt shall not have been discharged
within a period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Holders of at least 51% in principal
amount of the outstanding Notes a written notice specifying such event or events
of default and requiring the Company to cause such event of default to be cured
or such Debt to be discharged, and stating that such notice is a "Notice of
Default" hereunder; provided, however, that the Company is not in good faith
contesting in appropriate proceedings the occurrence of such an event of
default;
(e) a court of competent jurisdiction shall enter a final,
non-appealable judgment or judgments for the payment of money in the aggregate
in excess of $250,000 against the Company or any Subsidiary (other than in
respect of the Company's 12 3/4% Senior Subordinated Notes due February 1,
2000) and the judgment is not rescinded, annulled, stayed or satisfied for a
period (during which execution shall not be effectively stayed) of 30 days after
the amount of such judgment is determined;
(f) the Company, pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit
of its creditors; or
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case,
(ii) appoints a Custodian of the Company or for
all or substantially all of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 30 days.
A default under clause (c) of this subparagraph 8.1 is not an Event of
Default until the Holders of at least 51% in principal amount of the outstanding
Notes notify the Company of the default and the Company does not cure the
default within 60 days after receipt of the notice. The notice must specify the
default, demand that it be remedied, and state that the notice is a "Notice of
Default".
In the event the Company shall incur any Debt, other than Senior Debt,
that contains a cross-default provision, the Company shall promptly amend this
Note to add at least as favorable a provision.
8.2. If an Event of Default (other than an Event of Default
specified in subparagraph 8.1(a), (b), (f) or (g)) occurs and is continuing, the
Holders of at least 51% in principal amount of the outstanding Notes, by notice
to the Company, may declare the principal of, and accrued interest on, all the
Notes to be due and payable immediately. If an Event of Default specified in
subparagraph 8.1(a) or (b) occurs, the Holder of this Note, by notice to the
Company, may declare the principal amount of, and accrued interest on, this Note
to be due and payable immediately. If an Event of Default specified in
subparagraph 8.1(f) or (g) occurs, all unpaid principal, and accrued interest on
the Notes then outstanding shall become and be immediately due and payable
without any declaration or other act on the part of any Noteholder. Upon such
declaration, such principal and interest shall be due and payable immediately.
The Holders of a majority in principal amount of the outstanding Notes, by
notice to the Company, may rescind an acceleration and its consequences if all
existing Events of Default have been cured or waived (other than the nonpayment
of principal of and accrued interest on the Notes that shall have become due by
acceleration) and if the rescission would not conflict with any judgment or
decree.
8.3. If an Event of Default occurs and is continuing, the
Noteholders may pursue any available remedy by proceeding at law or in equity to
collect the principal of, and interest on, the Notes or to enforce the
performance of any provision of the Notes. A delay or omission by any Noteholder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
8.4. Subject to paragraph 7 of this Note, the Holders of a majority
in principal amount of the outstanding Notes by notice to the Company may waive
an existing Default and its consequences. When a Default is waived, it is cured
and no longer continuing.
9. Definitions; Rules of Construction.
9.1. For all purposes of this Note, the following definitions shall
apply unless the text otherwise requires:
"Affiliate" means any person directly or indirectly controlling,
controlled by, or under common control with the Company.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
State law for the relief of debtors.
"Company" means the party named as such in this Note until a successor
replaces it and thereafter means the successor.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Debt" means (1) any debt of the Company (i) for borrowed money, or
(ii) evidenced by a note, debenture or similar instrument (including a
capitalized lease or a purchase money obligation) given in connection with the
acquisition of any property or assets, including, without limitation,
securities; (2) any debt of others described in the preceding clause (1) that
the Company has guaranteed or for which it is otherwise liable; and (3) any
amendment, renewal, extension, restructuring, refunding or replacement of any
such debt described in (1) and (2) above.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Senior Debt" means all Debt (present or future) created, incurred,
assumed or guaranteed by the Company (and all renewals, amendments, extensions
or refundings thereof, as the same may be renewed, amended, extended or
refunded, from time to time) unless the instrument under which such Debt is
created, incurred, assumed or guaranteed expressly provides that such Debt is
not senior in right of payment to the Notes, but Senior Debt does not include
(1) Debt of the Company to any of its subsidiaries or Affiliates, and (2) any
Debt 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.
"Series B Preferred Stock" means the $8 Cumulative Convertible
Preferred Stock, Series B of the Company.
"Subsidiary" means a corporation a majority of whose Voting Stock is
owned by the Company or a Subsidiary.
"Voting Stock" means capital stock having voting power under ordinary
circumstances to elect directors.
9.2. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles;
(c) "or" is not exclusive; and
(d) words in the singular include the plural, and in the plural
include the singular.
10. 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 for any claim based on, in respect of, or by reason of, the Notes or their
issuance.
Each Noteholder, by accepting a Note, waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
11. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as : TEN COM (= tenants in common), TENANT (= tenants by the
entirety), JT TEN (= joint tenants with right of survivorship and not as tenants
in common), CUST (= custodian), and U/G/M/A/ (= Uniform Gifts to Minors Act).
12. Notices.
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been duly made, given or served
if delivered by hand (effective upon tender of delivery) or sent by registered
or certified mail, return receipt requested (effective at the time of postmark)
addressed:
(a) If to the holder of this Note or any other Note, at the
address of such holder set forth on the registration books of the Company; or
(b) If to the Company, at 767 Third Avenue, 29th Floor, New York,
New York 10017-2023 or at such other address as may have been furnished to the
holders of the Notes in writing by the Company.
13. Information Confidential.
By acceptance of this Note, the Holder hereof acknowledges that certain
of the information received or to be received by it pursuant hereto may be
confidential and proprietary and for its use only, and agrees that the Holder
will not use such confidential or proprietary information in violation of the
Securities Act, the Exchange Act or any other law, rule or regulation and will
use its reasonable efforts to maintain the confidentiality of any confidential
or proprietary information so received by it that is not otherwise available
from other sources; provided, however, that the foregoing shall in no way limit
or otherwise restrict the ability of the Holder to disclose any such information
concerning the Company that (i) is already in the public domain through no fault
or action on the part of the Holder or (ii) it may be required to disclose
pursuant to or as required by law or as directed by any court of competent
jurisdiction in connection with any action to which the Holder or the Company is
a party.
14. Severability.
Any provision or provisions of this Note found to be unenforceable or
prohibited by law will be ineffective only to the extent of such
unenforceability or prohibition and no other provision hereof will be
invalidated thereby.
15. Waiver of Usury Law.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time voluntarily (and that it will resist any effort to make
it do so involuntarily) insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury law wherever enacted, or at any
time hereafter in force, which may affect the covenants or the performance of
this Note.
16. Governing Law and Consent to Forum.
16.1. THIS NOTE IS DELIVERED IN AND SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAW.
16.2. ANY ACTION OR SUIT IN CONNECTION WITH THIS NOTE MAY BE BROUGHT
IN A COURT OF RECORD OF THE STATE OF NEW YORK OR A UNITED STATES DISTRICT COURT
SITUATE IN THE STATE OF NEW YORK, THE COMPANY HEREBY CONSENTING TO THE
NONEXCLUSIVE JURISDICTION OF EACH THEREOF.
IN WITNESS WHEREOF, LEXINGTON PRECISION CORPORATION has caused this
Note to be dated and to be executed and attested to on its behalf by its duly
authorized officers, and its corporate seal to be hereunto duly affixed.
LEXINGTON PRECISION CORPORATION
By: _______________________________
Dennis J. Welhouse
Senior Vice President
and Chief Financial Officer
[SEAL]
Attest:
_________________
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: ___________________________________________________________