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Exhibit 10.53
March 11, 1997
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Lexington Components, Inc.
767 Third Avenue
New York, New York 10017
Re: Amendment to Financing Agreements
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Gentlemen:
Reference is made to certain financing agreements dated January 11,
1990 between Lexington Components, Inc. ("LCI") and Congress Financial
Corporation ("Congress"), including, but not limited to, an Accounts Financing
Agreement [Security Agreement], as amended (the "Accounts Agreement"), and all
supplements thereto and all other related financing and security agreements
(collectively, all of the foregoing, as the same have heretofore or
contemporaneously been or may be hereafter, amended, replaced, extended,
modified or supplemented, the "Financing Agreements").
In connection with the financing arrangements pursuant to the Accounts
Agreement and the other Financing Agreements, the parties hereto hereby agree to
amend the Financing Agreements, as set forth below:
1. Definitions:
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(a) The definition of "Term Loans" contained in the letter
agreement re: Amendment to Financing Agreements, dated January 31, 1995, between
LCI and Congress (the "January 1995 Amendment"), as amended by the letter
agreement re: Amendment to Financing Agreements, dated January 16, 1996, between
LCI and Congress, is hereby amended to mean and include all term loans now
outstanding or hereafter made by Congress to LCI, including, without limitation,
the LCI Fourth Restated Note (as defined below) and any and all New Equipment
Term Notes hereafter executed by LCI, as any such notes may hereafter be
amended, renewed, extended, restated or replaced.
(b) Capitalized terms used herein, unless otherwise defined
herein, shall have the meanings ascribed thereto in the Accounts Agreement and
the other Financing Agreements.
2. Maximum Credit.
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(a) Section 1.7 of the Accounts Agreement, as heretofore
amended, is hereby deleted in its entirety and replaced with the following:
"1.7. "Maximum Credit" shall mean the amount of
$50,000,000."
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(b) For purposes of Section 2.3 of the Accounts Agreement, all
existing and future Term Loans, including, without limitation, the Loans
evidenced by the LCI Fourth Restated Note and any and all New Equipment Term
Notes executed by LCI after the date hereof, shall be considered made pursuant
to a supplement to the Accounts Agreement, and the "Term Loans" to LPC,
including, without limitation, the "Loans" evidenced by the "LPC Fourth Restated
Note", the "LPC New York Real Estate Notes" and any and all "New Equipment Term
Notes" (as each such quoted term is defined in the LPC Financing Agreements)
executed by LPC after the date hereof, shall be considered made pursuant to a
supplement to the Accounts Financing Agreement [Security Agreement], dated
January 11, 1990, between LPC and Congress, as amended.
3. ADDITIONAL TERM LOAN. Contemporaneously herewith, in order to
evidence the balance of the outstanding Obligations owed by LCI pursuant to the
Third Amended and Restated Promissory Note, dated August 21, 1996, made by LCI
to the order of Congress, in the original principal amount of $6,087,000, the
New Equipment Term Note, dated January 30, 1997, made by LCI to the order of
Congress, in the original principal amount of $500,000, the New Equipment Term
Note, dated July 1, 1996, made by LCI to the order of Congress, in the original
principal amount of $500,000, the New Equipment Term Note, dated March 15, 1996,
made by LCI to the order of Congress, in the original principal amount of
$800,000, the New Equipment Term Note, dated December 15, 1995, made by LCI to
the order of Congress, in the original principal amount of $600,000, the New
Equipment Term Note, dated October 11, 1995, made by LCI to the order of
Congress, in the original principal amount of $700,000, the New Equipment Term
Note, dated September 13, 1995, made by LCI to the order of Congress, in the
original principal amount of $600,000, the Term Promissory Note, dated August 1,
1995, made by LCI to the order of Congress, in the original principal amount of
$1,000,000 and the New Equipment Term Note, dated June 26, 1995, made by LCI to
the order of Congress, in the original principal amount of $1,300,000, and in
order to evidence an additional one-time advance to LCI, which shall be made
upon the effective date hereof in the principal amount of $3,589,533 (the "March
1997 Additional LCI Term Loan"), LCI is executing and delivering to Congress a
Fourth Amended and Restated Promissory Note in the original principal amount of
$13,965,000 (as the same now exists or may hereafter be amended, supplemented,
renewed, extended, restated or replaced, the "LCI Fourth Restated Note"). The
Obligations evidenced by the LCI Fourth Restated Note shall be payable,
including interest and other amounts, as provided therein and, to the extent not
inconsistent with the terms of the LCI Fourth Restated Note, as provided in the
other Financing Agreements, and shall be secured by all Collateral.
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4. New Equipment Term Loans.
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(a) Sections 2(a) and 2(b) of the letter agreement re:
Amendment to Financing Agreements, dated as of March 25, 1994, between Congress
and LCI, as heretofore amended by the letter agreement re: Amendment to
Financing Agreements, dated as of August 1, 1994 and the January 1995 Amendment
(as so amended, the "New Equipment Term Loan Agreement") are hereby deleted in
their entirety and replaced with the following:
"(a) Subject to and upon the terms and conditions
contained herein and in the other Financing Agreements,
including the sublimit set forth below in Section 2(b),
Congress shall, in its discretion, make New Equipment Term
Loans to LCI, from time to time, at LCI's request, of up to
(i) forty-five (45%) percent of the Cost of Eligible New
Equipment, or (ii) if LCI shall elect to obtain an Appraisal
Report (as defined below) or if the Eligible New Equipment
which is the subject of the New Equipment Term Loan requested
hereunder is equivalent in all respects (including, without
limitation, model, make and manufacturer) to Equipment shown
in an acceptable Appraisal Report prepared not more than
twenty-four (24) months prior to the date the requested New
Equipment Term Loan is to be made, ninety (90%) percent of the
appraised orderly liquidation value of such Eligible New
Equipment (or such equivalent Equipment) as shown in such
Appraisal Report. As used herein, "Appraisal Report" shall
mean an orderly liquidation value appraisal report prepared
for Congress, at LCI's expense, by MB Valuation Services,
Inc., Daley-Hodkin Appraisal Corporation or other appraiser
reasonably satisfactory to Congress, and including the orderly
liquidation value appraisal reports of MB Valuation Services
Inc., dated January 15, 1997, with respect to LCI's Equipment.
(b) Except in Congress' discretion the aggregate
original principal amount of all New Equipment Term Loans made
to LCI plus the aggregate original principal amount of all
"New Equipment Term Loans" (as defined in the LPC Financing
Agreements) made to LPC under the LPC Financing Agreements at
any time after the date hereof, shall not exceed $3,500,000.
Except in Congress' discretion, New Equipment Term Loans shall
only be available (subject to the foregoing lending formula
and sublimit set forth herein) in integral multiples of
$100,000 and in amounts not less than $500,000 for each New
Equipment Term Loan."
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(b) Exhibit I to the New Equipment Term Loan Agreement, as
heretofore amended, is hereby replaced with the form designated as Exhibit I
annexed hereto. Each New Equipment Term Loan shall be payable, including
interest and other amounts, as provided in the form of New Equipment Term Note
annexed hereto as Exhibit I, and, to the extent not inconsistent with Exhibit I,
as provided in the other Financing Agreements, and shall be secured by all
Collateral.
5. INTEREST. Effective with respect to interest accruing
on or after the date hereof, the definition of "Interest Rate"
set forth in the January 1995 Amendment is hereby amended as
follows:
(a) by deleting the reference to "one (1%) percent"
and replacing it with "one quarter of one (1/4%) percent";
(b) by deleting the reference to "three and one-quarter (3
1/4%) percent" and replacing it with "two and three-quarters (2 3/4%) percent";
(c) by deleting the reference to "three (3%) percent"
and replacing it with "two and one-quarter (2 1/4%) percent"; and
(d) by deleting the reference to "five and one-quarter
(5 1/4%) percent" and replacing it with "four and three-quarters
(4 3/4%) percent".
6. INVENTORY SUBLIMIT. Paragraph 3 of the letter agreement re:
Inventory Loans, dated March 23, 1990, is hereby further amended by deleting
the reference to "$5,000,000" and replacing it with "$6,000,000".
7. FINANCIAL COVENANTS. Sections IV(g)(i) and IV(g)(ii)
of the Covenant Supplement to the Accounts Agreement, dated
January 11, 1990, as amended, are each hereby further amended by
deleting them in their entirety and replacing them with the
following:
"(i) Borrower shall, at all times, maintain on a
basis consolidated with LPC and LPC's direct and indirect
Subsidiaries, Working Capital not less than $2,500,000; and
(ii) Borrower shall, at all times, maintain on a
basis consolidated with LPC and LPC's direct and indirect
Subsidiaries, a Net Worth not less than negative $8,500,000
(-$8,500,000)."
8. TERM. The first sentence of Section 9.1 of the Accounts
Agreement, as heretofore amended, is hereby deleted in its entirety and replaced
with the following:
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"This Agreement shall become effective upon
acceptance by you and shall continue in full force and effect
for a term ending April 1, 2000 (the "Renewal Date"), unless
sooner terminated pursuant to the terms hereof."
9. Fees.
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(a) LCI shall pay to Congress a facility amendment and
extension fee in an amount equal to $50,000, payable simultaneously with the
execution hereof, which fee is fully earned as of the date hereof.
(b) Section 3.5 of the Account Agreement is hereby
deleted in its entirety and replaced with the following:
"3.5 If the average outstanding daily principal
balance of all Loans made and Credits provided by you to us
under this Agreement or any supplement hereto for any calendar
month, plus the average outstanding daily principal balance of
all "Loans" made or "Credits" provided by you to LPC under
(and as such quoted terms are defined in) the LPC Financing
Agreements for such calendar month, shall be less than
$25,000,000 (the "Unused Line Base Amount"), we and LPC shall
be jointly and severally obligated to pay to you, on or before
the tenth (10th) day of the next succeeding calendar month, an
unused line fee calculated at the rate of one-half of one (1/2
of 1%) percent per annum upon the amount by which the Unused
Line Base Amount exceeds the average outstanding daily
principal balance of all such Loans and Credits to us and LPC
in respect of such month. If, after March 1, 1997, we shall
issue debt or equity securities in a public offering, the
proceeds of which are used contemporaneously therewith to
reduce the aggregate amount of the then-outstanding
Obligations of us and LPC to you to an amount equal to or less
than $10,000,000, then, provided the Financing Agreements and
LPC Financing Agreements have not been terminated, the Unused
Line Base Amount shall be reduced to $10,000,000, effective
upon the closing of such public offering and contemporaneous
reduction of the aggregate amount of the then-outstanding
Obligations of us and LPC to you to the amount of $10,000,000
or less."
(c) Section 9.2 of the Accounts Agreement, as
heretofore amended, is hereby deleted in its entirety and replaced with the
following:
"9.2 If for any reason the Financing Agreements are
terminated prior to April 1, 2000, in view of the
impracticability and extreme difficulty of ascertaining
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actual damages and by mutual agreement of the parties as to a
reasonable calculation of your lost profits as a result
thereof, we hereby agree to pay to you upon the effective date
of such termination, jointly and severally with LPC, an early
termination fee in an amount equal to: (a) two (2%) percent of
the Maximum Credit if such termination occurs on or prior to
March 31, 1998, (b) one (1%) percent of the Maximum Credit if
such termination occurs after March 31, 1998, but on or prior
to March 31, 1999, or (c) one-half of one (1/2 of 1%) of the
Maximum Credit if such termination occurs after March 31,
1999, but on or prior to September 30, 1999. No early
termination fee shall be payable if termination occurs
effective after September 30, 1999. The early termination fee
payable as provided for herein shall be presumed to be the
amount of damages sustained by you as a result of said early
termination and we agree that it is reasonable under the
circumstances currently existing. The early termination fee
provided for herein shall be deemed included in the
Obligations."
10. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by LCI to Congress pursuant to the Financing Agreements, LCI hereby
represents, warrants and covenants with and to Congress as follows (which
representations, warranties and covenants are continuing and shall survive the
execution and delivery hereof and shall be incorporated into and made a part of
the Financing Agreements):
(a) No Event of Default exists or has occurred and is
continuing on the date of this Amendment.
(b) This Amendment has been duly executed and delivered by
LCI and is in full force and effect as of the date hereof, and the agreements
and obligations of LCI contained herein constitute the legal, valid and binding
obligations of LCI enforceable against LCI in accordance with their terms.
11. Use of Proceeds.
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The proceeds of the March 1997 Additional LCI Term Loan to be
made by Congress pursuant to Paragraph 3 hereof shall be credited to LCI's
Revolving Loan account maintained by Congress under the Financing Agreements.
12. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. Anything
contained in this Amendment to the contrary notwithstanding, the
terms and provisions of this Amendment shall only become
effective upon the satisfaction of the following additional
conditions precedent:
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(a) Congress shall have received an executed original or
executed original counterparts (as the case may be) of this Amendment together
with the following, each of which shall be in form and substance satisfactory to
Congress:
(i) the LCI Fourth Restated Note;
(ii) certified resolutions of the Board of
Directors of LCI duly authorizing the
execution and delivery of this
Amendment and the instruments and
transactions hereunder; and
(iii) an Amendment between LPC and Congress
with respect to the LPC Financing
Agreements and the documents and
instruments required thereunder and the
satisfaction of all conditions
precedent to the effectiveness thereof
(the "March 1997 LPC Amendment").
(b) Arrangements satisfactory to Congress shall be made by
LPC such that the proceeds of the March 1997 Additional LPC Term Loan (as
defined in the March 1997 LPC Amendment) shall be used as required therein, and
that, contemporaneously therewith:
(i) CIT shall release all of its liens and
security interests in the assets and
properties of LPC which constitute "CIT
Collateral" pursuant to the
Subordination Agreement between CIT and
Congress, as amended;
(ii) CIT and Congress shall enter into an
agreement, in form and substance
satisfactory to Congress, terminating
or amending the Subordination
Agreement dated as of January 17, 1996
between CIT and Congress, as amended,
to provide for, among other things,
the release referred to in clause (i)
of this paragraph 12(b); and
(iii) LPC shall have delivered to Congress a
payoff letter from Chase, setting forth
the amount of the Rochester IRB Balance
as of the date hereof, and shall have
authorized Congress to disburse a
portion of the March 1997 Additional
LPC Term Loan directly to Chase in
payment thereof.
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(c) All representations and warranties contained herein, in
the Accounts Agreement and in the other Financing Agreements shall be true and
correct in all material respects; and
(d) No Event of Default shall have occurred and no event
shall have occurred or condition be existing which, with notice or passage of
time or both, would constitute an Event of Default.
13. EFFECT OF THIS AMENDMENT. Except as modified pursuant hereto,
the Accounts Agreement and all supplements to the Accounts Agreement and all
other Financing Agreements, are hereby specifically ratified, restated and
confirmed by the parties hereto as of the date hereof and no existing
defaults or Events of Default have been waived in connection herewith. To the
extent of conflict between the terms of this Amendment and the Accounts
Agreement or any of the other Financing Agreements, the terms of this Amendment
control.
14. FURTHER ASSURANCES. LCI shall execute and deliver such
additional documents and take such additional actions as may reasonably be
requested by Congress to effectuate the provisions and purposes of this
Amendment.
15. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its principles of conflicts of law.
By the signatures hereto of the duly authorized officers, the parties
hereto mutually covenant, warrant and agree as set forth herein.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
By: Frank A.Chiovari
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Title: Vice President
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AGREED AND ACCEPTED:
LEXINGTON COMPONENTS, INC.
By: Warren Delano
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Title: President
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CONSENT
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The undersigned guarantor hereby consents to the foregoing Amendment,
agrees to be bound by its terms applicable to it, and ratifies and confirms the
terms of its Guarantee and Waiver dated January 11, 1990 as applicable to all
present and future indebtedness, liabilities and obligations of LEXINGTON
COMPONENTS, INC. ("LCI") to CONGRESS FINANCIAL CORPORATION ("Congress"),
including, without limitation, all indebtedness, liabilities and obligations
under the Financing Agreements as amended hereby.
LEXINGTON PRECISION CORPORATION
By: Warren Delano
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Title: President
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EXHIBIT I
NEW EQUIPMENT TERM NOTE*
$ , 19
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FOR VALUE RECEIVED, LEXINGTON COMPONENTS, INC., 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 ____________________________ DOLLARS ($_________) in lawful
money of the United States of America and in immediately available funds, in
eighty-four (84) consecutive monthly installments (or earlier as hereinafter
referred to) on the first day of each month commencing __________, 19__, of
which the first eighty-three (83) installments shall each be in the amount of
___________________ DOLLARS ($________), 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 on
the first day of the month next following the date hereof, 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
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* For preparation of Note:
The blanks are to be completed such that the principal amount
of the New Equipment Term Loan is amortized in eighty-four
(84) equal, consecutive monthly installments of principal
commencing on the first day of the month following the date of
advance and ending with a final (i.e. 84th) installment of the
remaining unpaid balance.
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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 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
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 assigned thereto in
the Accounts Agreement (as hereinafter defined) and the other Financing
Agreements.
The Interest Rate payable hereunder as to Prime Rate Loans shall
increase or decrease by an amount equal to each increase or decrease,
respectively, in such 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 issued pursuant to the terms and provisions of the letter
agreement re: Amendment to Financing Agreements, dated as of March __, 1997
between Debtor and Payee (the "Amendment") to evidence a "New Equipment Term
Loan" (as defined in the New Equipment Term Loan Agreement as referred to in and
as modified by the Amendment) made by Payee to Debtor. 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 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,
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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 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
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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 COMPONENTS, INC.
ATTEST:
By:
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Secretary Title:
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[Corporate Seal]
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