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NEW EQUIPMENT TERM NOTE
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$845,000 July 30, 1999
FOR VALUE RECEIVED, LEXINGTON RUBBER GROUP, INC., formerly known as
Lexington Components, Inc., a Delaware corporation (the "Debtor"), hereby
unconditionally promises to pay to the order of CONGRESS FINANCIAL CORPORATION,
a Delaware corporation, as successor by merger to Congress Financial
Corporation, a California corporation (the "Payee"), at the offices of Payee at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
the Payee or any holder hereof may from time to time designate, the principal
sum of EIGHT HUNDRED FORTY-FIVE THOUSAND DOLLARS ($845,000) 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 September 1, 1999, of which the first
eighty-three (83) installments shall each be in the amount of TEN THOUSAND ONE
HUNDRED DOLLARS ($10,100), 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 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 First Union National Bank, or its successors, as its prime rate,
whether or not such announced rate is the best rate available at such bank.
Unless otherwise defined herein, all
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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 11, 1997
between Debtor and Payee, as amended by the letter agreement re: Amendment to
Financing Agreements, dated October 20, 1998, between Debtor and Payee
(collectively, 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, Xxxxx may charge the amount thereof
to any account of Debtor maintained by Xxxxx.
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, 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
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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 Xxxxx to Debtor.
Payee shall not be required to resort to any Collateral for payment,
but may proceed against Debtor and any guarantors or endorsers hereof in such
order and manner as Payee may choose. None of the rights of Payee shall be
waived or diminished by any failure or delay in the exercise thereof.
Debtor hereby waives the right to a trial by jury and all rights of
setoff and rights to interpose counterclaims and cross-claims in any litigation
or proceeding arising in connection with this Note, the Accounts Agreement, the
other Financing Agreements, the Obligations or the Collateral, other than
compulsory counterclaims, the non-assertion of which would result in a permanent
waiver. Debtor hereby irrevocably consents to the non-exclusive jurisdiction of
the Supreme Court of the State of New York and of the United States District
Court for the Southern District of New York for all purposes in connection with
any action or proceeding arising out of or relating to this Note, the Accounts
Agreement, the other Financing Agreements, the Obligations or the Collateral and
further consents that any process or notice of motion or other application to
said Courts or any judge thereof, or any notice in connection with any
proceeding hereunder may be served (i) inside or outside the State of New York
by registered or certified mail, return receipt requested, and service or notice
so served shall be deemed complete five (5) days after the same shall have been
posted or (ii) in such other manner as may be permissible under the rules of
said Courts. Within thirty (30) days after such mailing, Debtor shall appear in
answer to such process or notice of motion or other application to said Courts,
failing which Debtor shall be deemed in default and judgment may be entered by
Payee against Debtor for the amount of the claim and other relief requested
therein.
The execution and delivery of this Note has been authorized by the
Board of Directors of Debtor.
This Note, the other Obligations and the Collateral shall be governed
by and construed in accordance with the laws of the State of New York and shall
be binding upon the successors and assigns of Debtor and inure to the benefit of
Payee and its successors, endorsees and assigns. If 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.
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Whenever used herein, the terms "Debtor" and "Payee" shall be deemed to
include their respective successors and assigns.
LEXINGTON RUBBER GROUP, INC.
ATTEST:
By: Xxxxxxx X. Xxxxx
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Xxxxx Xxxxxxxx
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Assistant Secretary Title: Chairman
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[Corporate Seal]
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