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Exhibit 10.52
FOURTH
AMENDED AND RESTATED
PROMISSORY NOTE
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$11,324,000 New York, New York
March 11, 1997
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FOR VALUE RECEIVED, LEXINGTON PRECISION CORPORATION, a Delaware
corporation (the "Debtor"), hereby unconditionally promises to pay to the order
of 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 ELEVEN MILLION THREE HUNDRED TWENTY-FOUR
THOUSAND AND NO/100 DOLLARS ($11,324,000) in lawful money of the United States
of America and in immediately available funds, in eighty-four (84) consecutive
monthly installments (or earlier as hereinafter referred to) on the first day of
each month commencing April 1, 1997, of which the first eight-three (83)
installments shall each be in the amount of ONE HUNDRED THIRTY-FOUR THOUSAND
EIGHT HUNDRED TEN AND NO/100 DOLLARS ($134,810), and the last (i.e.
eighty-fourth (84th)) 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
April 1, 1997 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.
For purposes hereof, (a) the term "Interest Rate" shall mean, as to
Prime Rate Loans, a rate of one quarter of one (1/4%) percent per annum in
excess of the Prime Rate, and as to Eurodollar Rate Loans, a rate of two and
three-quarters (2 3/4%) 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 and one-quarter (2 1/4%) percent per annum in excess of the Prime Rate as to
Prime Rate Loans and a rate of four and three-quarters (4 3/4%) 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 after 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 announced by
CoreStates Bank, N.A., or its successors, at its office in Philadelphia,
Pennsylvania, 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
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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 the 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 Fourth 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 of $4,752,704
outstanding under that certain Third Amended and Restated Promissory Note, dated
August 21, 1996, in the original principal sum of $5,236,304 made by Debtor to
Payee PLUS the unpaid principal balance of $792,800 outstanding under that
certain New Equipment Term Note, dated July 1, 1996, in the original principal
sum of $900,000, made by Debtor to Payee (collectively, the "Existing Promissory
Notes") PLUS an additional one-time advance made on the date hereof by Payee to
Debtor in the principal sum of $5,778,496 (the "Additional Term Loan"). None of
the outstanding indebtedness evidenced by the Existing Promissory Notes shall be
deemed extinguished by Debtor's issuance or Payee's acceptance of this Note.
This Note shall be deemed to evidence the Additional Term Loan and to substitute
for, and to amend and restate in its entirety, the Existing Promissory Notes as
to the indebtedness previously evidenced thereby, and the Existing Promissory
Notes 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,
and such failure shall continue for three (3) days, or
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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 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 and during the
continuance of any Event of Default, 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
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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 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
By: Warren Delano
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Title: President
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