SECOND AMENDMENT TO FORBEARANCE AGREEMENT
Exhibit 10-1
SECOND AMENDMENT TO FORBEARANCE AGREEMENT
This SECOND AMENDMENT to that certain Agreement made as of May 18, 2007 (the
“Agreement”) is executed October 17, 2007, but upon the Effective Date is deemed effective
as of September 24, 2007 (the “Second Amendment”) by and between Lexington Precision
Corporation (“LPC”) and Lexington Rubber Group, Inc. (“LRG”) (collectively, the
“Borrowers”), as borrowers under that certain Credit and Security Agreement with Borrower
dated May 31, 2006 (as amended to date and as may be amended, restated or otherwise modified from
time to time, the “Credit Agreement”), and CapitalSource Finance LLC
(“CapitalSource”), as a lender, as collateral agent and administrative agent for itself and
other lenders under the Credit Agreement (CapitalSource, when acting in such capacity, is herein
called the “Revolver Agent”), and as Co-Documentation Agent, and Xxxxxxx Business Credit
Corporation (“Xxxxxxx”) as a lender (CapitalSource and Xxxxxxx, as lenders, collectively
the “Revolver Lenders”) and as Co-Documentation Agent (CapitalSource and Xxxxxxx in such
capacity, collectively the “Co-Documentation Agents”), and by and among Borrowers as
borrowers under that certain Loan and Security Agreement dated May 31, 2006 (as amended to date and
as may be amended, restated or otherwise modified from time to time, the “Loan Agreement”)
and CSE Mortgage LLC (“CSE”), as a lender and as collateral agent for itself and each other
lender under the Loan Agreement (CSE, when acting in such capacity, is herein called the “Loan
Agent”) (Revolver Agent and Loan Agent, collectively, the “Agents”), and DMD Special
Situations Funding LLC, (“DMD”), as a lender under the Loan Agreement (CSE and DMD
collectively, the “Mortgage Loan Lenders”) (Revolver Lenders and Mortgage Loan Lenders
collectively, the “Lenders”; those Lenders agreeing to this Second Amendment the
“Forbearing Lenders”).
RECITALS:
A. Revolver Lenders have loaned money and made credit available to Borrowers in accordance
with the terms of the Credit Agreement. Mortgage Loan Lenders have loaned money and made credit
available to Borrowers in accordance with the terms of the Loan Agreement.
B. Borrowers and CapitalSource, Xxxxxxx, CSE and DMD in their various capacities have entered
into that certain First Amendment and Default Waiver Agreement dated as of November 20, 2006 (the
“Former Forbearance Agreement”).
C. Borrowers and CapitalSource, Xxxxxxx, CSE and DMD in their various capacities are parties
to the Agreement, as amended by that certain First Amendment to Forbearance Agreement as of July
20, 2007 (the “First Amendment”). Collectively the Credit Agreement, Loan Agreement,
Former Forbearance Agreement and Agreement, along with the First Amendment and this Second
Amendment, may be referred to herein as the “Documents.”
D. The Lenders have asserted that certain Defaults and Events of Default (each as defined in
the Documents) have occurred under the Documents, as set forth in: (a) the Former Forbearance
Agreement, (b) the Agreement, the First Amendment, (c) that Notice of Default and Notice of
Termination letter issued to Borrowers by the Agents, dated February 2, 2007; (d) that certain
Notice of Events of Default dated March 5, 2007; (e) that certain Notice of Events of Default dated
April 4, 2007; (f) those certain Notices of Events of Termination dated June 22, 2007 and September
25, 2007, respectively; and (g) those certain letters, the most recent of which is dated October
16, 2007, between Agent and the Borrowers related to amounts being borrowed by Borrowers under the
Revolver (the “Discretionary Funding Letters” and, collectively with the correspondence
identified in (c)-(g), the
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“Default Letters”). The Defaults and Events of Default set
forth in the Former Forbearance Agreement, the Default Letters, the Agreement and the First
Amendment are hereby incorporated herein verbatim. The parties hereto agree that “Designated
Defaults” as used herein include:
| i. | the Borrowers’ failure to meet the covenant set forth in Section 8.2 of the Credit Agreement and Loan Agreement as a result of their failure to meet their Fixed Charge Coverage requirement for the period ending January 31, 2007; | |
| ii. | the Borrowers’ failure to furnish, as required under Section 11.3 of the Credit Agreement, December 2006 covenant calculations pursuant to the request of Revolver Agent on or before February 15, 2007; | |
| iii. | the Borrowers’ failure to obtain a landlord waiver for the Borrowers’ New York City location; | |
| iv. | the Borrowers’ failure to make those certain interest payments arising under that certain Indenture dated as of November 18, 2003 (as supplemented or amended) in respect of LPC’s 12% Senior Subordinated Notes due August 1, 2009 (the “Subordinate Debt Issue”) due (1) November 1, 2006; (2) February 1, 2007; and (3) May 1, 2007 (or to cure such payment defaults within the applicable cure period); | |
| v. | the Borrowers’ failure to meet the covenant set forth in Section 8.2 of the Credit Agreement and Loan Agreement as a result of their failure to meet their Fixed Charge Coverage requirements for the periods ending February 28, 2007, and March 31, 2007; | |
| vi. | the Borrowers’ failure to make that certain interest payment on account of the Subordinate Debt Issue due August 1, 2007 or otherwise cure such payment default within the applicable cure period; | |
| vii. | the Borrowers will fail, prior to the Termination Date of this Second Amendment, to make that certain interest payment on account of the Subordinate Debt Issue due November 1, 2007 (and will not cure such payment defaults within the applicable cure period); | |
| viii. | the Borrowers’ failure to comply with the covenants in Section 13c of the Agreement, including the Borrowers’ failure to timely provide to the Agents proof of execution of an engagement agreement with W.Y. Xxxxxxxx and initial marketing materials. |
Borrowers contest that Designated Defaults i, ii, and iii are Defaults or Events of Default but
acknowledge that Designated Defaults iv, v, vi, and viii have occurred and, except for viii, are
continuing to occur through the date of this agreement and that Designated Default vii will occur
in the future. Borrowers acknowledge that the failure to list an alleged Default or Event of
Default herein or in the Agreement, Former Forbearance Agreement, Default Letters or other
Documents shall not impair Agents’ or Lenders’ abilities to pursue any rights or exercise any
remedies related to such alleged Defaults or Events of Default upon an Event of Termination (as
defined below).
E. Borrowers have requested to amend the Agreement to amend certain terms related to the
Forbearance Period, and the Forbearing Lenders have agreed to do so under the terms and conditions
set forth in this Second Amendment.
F. To the extent not specifically modified by the terms of the First Amendment or this Second
Amendment, the Recitals set forth in the Agreement are incorporated in their entirety herein by
reference and shall survive this Second Amendment.
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, Agents, Lenders and Borrowers agree as
follows:
1. Incorporation of Recitals; Definitions. Each of the foregoing recitals is hereby
acknowledged and affirmed as being accurate and complete and is hereby incorporated as part of
this Second Amendment. Capitalized terms defined in the Recitals section of this Second
Amendment are incorporated herein by this reference and are used herein as so defined.
Capitalized terms used herein to the extent not otherwise defined herein, shall have the same
meaning as provided in the Agreement. Capitalized terms used herein but not otherwise defined
in this Second Amendment or in the Agreement shall have the same meaning as given to them in the
Documents.
2. Forbearance. Section 2 of the Agreement is deleted in its entirety and
replaced with the following:
Subject to the satisfaction of the terms and conditions set forth herein, until that
date (the “Forbearance Termination Date”), which is the earliest to occur of
(a) 4:00 p.m. (Eastern) on November 26, 2007, plus an additional thirty (30) days (or
sixty (60) days in the event of the execution of an LOI with a Deposit or an APA, as
set forth in paragraph 3) should an Extending Event (as defined in the following
paragraph) occur, or (b) the consummation of a refinancing or a sale of the stock or
assets of Borrowers (other than in the ordinary course), or (c) the date of the
occurrence of any one or more Events of Termination (defined herein) (the
“Forbearance Period”), Lenders will not exercise or enforce their rights or
remedies against Borrowers which Agents or Lenders would be entitled to exercise or
enforce under the terms of the Documents by reason of the occurrence or continuance of
the Designated Defaults. This Agreement shall not act as a waiver of Agents or
Lenders’ right to enforce any claims, rights or remedies, nor shall this Agreement act
as a forbearance in the event Defaults or Events of Default (other than the Designated
Defaults) occur at any time prior to the Forbearance Termination Date. Further, this
forbearance shall not act as a waiver of Agents or Lenders’ right to enforce any
claims, rights or remedies upon the occurrence of an Event of Termination. Nothing
contained herein shall be construed as requiring the Forbearing Lenders to extend the
Forbearance Termination Date. On the Forbearance Termination Date, without notice,
the Obligations shall be deemed automatically accelerated and immediately due and
payable in full by Borrowers (unless Agents notify Borrowers otherwise in writing) to
Lenders and the Borrowers’ ability to borrow additional amounts under any of the
Documents shall be deemed terminated.
3. Extending Events. An “Extending Event” shall be the delivery to Agents and
Lenders of one of the following: (i) a letter conveying a financing proposal executed by
Borrowers and an entity or person that has the financial capability to provide the proposed
financing and which is not an affiliate or subsidiary in, or officer or director of, any
Borrower (the “Refinancing Lender”), pursuant to which such Refinancing Lender commits
to provide credit to the Borrowers, prior to the expiration of the Forbearance Period, in an
amount equal to or in excess of the amount necessary to pay in full and in cash all Obligations
owing on the date such amounts are remitted to the Lenders, provided that, as of such initial
Forbearance Termination Date, such proposal or commitment letter does not have a contingency
that makes the obligations of the Refinancing Lender subject to completing any due diligence
(other than, with respect to any real estate, the completion of satisfactory surveys, title
reports, environmental reports or other reports prepared by a governmental agency, engineer or
attorney which such governmental agency or attorney advises the Borrowers will take more than
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thirty (30) days to complete) (the “Commitment Letter”); or (ii) one or more letters of
intent (“LOI”) executed by Borrowers and entities or persons (the “Buyers”) pursuant to
which the Borrowers, prior to the expiration of the Forbearance Period will sell such stock
and/or assets and receive and tender the funds from such sale to Lenders at a price sufficient
to repay in full and in cash all Obligations on the date the funds are remitted to the Lenders
or (iii) an LOI executed by Borrowers and Buyers pursuant to which the Borrowers, prior to the
expiration of the Forbearance Period will sell all or substantially all of the assets of its
Lexington Medical business for not less than $30 million in cash, United States currency. In the
event an LOI conforming to (ii) or (iii) of this paragraph is executed during the initial
Forbearance Period, the Forbearance Period shall be extended automatically to December 26, 2007.
In the event an xxxxxxx money deposit in connection with an LOI equal to at least three percent
(3%) of the purchase price (the “Deposit”) is made, or if an Asset Purchase Agreement or Stock
Purchase Agreement (collectively the “APA”) is executed, or if the Deposit requirement of this
Agreement is specifically waived by Agents, in writing, then the Forbearance Period (whether
prior to the expiration of the initial Forbearance Period or during any extended Forbearance
Period) will be extended, automatically, to January 24, 2008. The Deposit shall be remitted to
an institutional Escrow Agent mutually satisfactory to the Borrowers, Buyers, Agents and
Lenders.
4. Forbearance Fee. The non-refundable forbearance fee referenced in Section 8 of
the Agreement in the amount equal to one percent of the Obligations outstanding on the Effective
Date (the “Forbearance Fee”) has been charged in accordance with the terms of the Agreement.
Borrowers have received a credit of $130,140.64 against the Forbearance Fee for Default Interest
charged during December 2006 and January 2007; the balance was properly charged as an Advance
under the Revolving Credit Facility on September 25, 2007.
5. Amendment Fee. A non-refundable amendment fee in the amount equal to
one-quarter percent (1/4%) of the Obligations outstanding on the Effective Date (the “Amendment
Fee”) shall be charged and is deemed fully earned upon execution of this Second Amendment by the
Borrowers. The Amendment Fee shall be paid as follows: In the event an Extending Event occurs
and the Agents and Lenders receive payment in full of all Obligations on or before January 24,
2008, then the Amendment Fee shall be waived, effective with the receipt by Lenders of payment
in full of all Obligations. In the event an Extending Event does not occur, the Agent is
directed by the Borrowers to charge the Amendment Fee as an Advance under the Revolving Credit
Facility on the Forbearance Termination Date. If for any reason the Amendment Fee (if not
waived) is not paid on or before the Forbearance Termination Date, then the balance owing for
such Amendment Fee shall be added to the Obligations outstanding under the Credit Agreement and
Loan Agreements, all of which shall accrue interest at the rate or rates then being applied
under the Credit Agreement and Loan Agreement from the Forbearance Termination Date until all
Obligations are paid in full.
6. Amendment’s Effective Date and Conditions Precedent. This Second Amendment and
the obligations of the parties hereunder shall become effective on the date when each of the
following conditions are met (the “Effective Date”): (a) Borrowers shall have delivered
to Agents this Second Amendment duly executed by an authorized officer of Borrowers; (b) the
Forbearing Lenders shall have countersigned this Second Amendment; (c) the secretary of
Borrowers’ boards of directors (the “Boards”) shall have delivered to Agents the
authorizing resolutions related to the Boards’ approval of the Borrowers’ execution of this
Agreement and a duly executed secretary’s and incumbency certificate identifying the current
officers of Borrowers who are duly authorized by the Boards to execute and deliver Documents,
including without limitation this Second Amendment, and identifying the current members of the
Boards; and (d) the Agents shall receive a copy of a fully executed and effective agreement with
respect to the Subordinate Debt Issue, whereby the holders of the Subordinate Debt Issue have
extended their forbearance through a date not less than any
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Forbearance Termination Date. Each
Borrower hereby (a) acknowledges that the Effective Date of this Agreement was agreed to by the
parties hereto as an accommodation to each Borrower and (b) agrees that the Effective Date of
this Agreement shall not cause any retroactive violation of the Forbearance Agreement or any
Loan Document by any Agent or Lender to and including the execution date of this Agreement.
7. Financial Measurements. The terms of Section 13 of the Agreement (as amended by
the First Amendment) remain in full force and effect. In addition, Borrowers shall continue to
provide to Agents the Revenue and EBITDA projections as set forth in Section 13b of the
Agreement. Borrowers will provide Agents and Lenders financial projections for the period
January through December 2008 by December 31, 2007.
8. Survival of Terms of the Agreement. All terms, releases, waivers,
representations, warranties and covenants contained in the Agreement and the First Amendment not
expressly modified herein shall remain in full force and effect in accordance with the terms set
forth in the Agreement and the First Amendment and are hereby reaffirmed and deemed effective as
of the Effective Date of this Second Amendment.
9. Ratification of Existing Agreements and Amounts Owing. Borrowers hereby reaffirm
all of the terms, conditions, representations and warranties of each of the Documents (except as
expressly set forth herein with respect to the Designated Defaults which have occurred and are
continuing) and acknowledge that all of the Obligations are, by Borrowers’ execution of this
Second Amendment, ratified and confirmed in all respects by Borrowers. Borrowers
acknowledge that, as of October 17, 2007 (prior to any borrowing October 17), Borrowers
are obligated to repay the outstanding Obligations to Agents and Lenders, including without
limitation $36,938,229.53 of outstanding principal, $907,000.00 of L/C Obligations, all accrued
and unpaid interest, late charges, pre-payment premiums, and all reasonable fees, costs and
expenses, including without limitation legal fees and expenses due pursuant to the Documents,
including the Agreement and this Second Amendment (whether incurred by outside or in-house legal
counsel) (the “Balance”). The Balance, plus all additional advances and new Obligations
incurred between October 17, 2007 and the Effective Date are subject to no offset, recoupment,
claim, counterclaim or defense of any kind to their enforcement. Borrowers acknowledge and
agree, as of the Effective Date, that they are unconditionally liable to Lenders on a joint and
several basis under the Documents for the payment
of all Obligations, plus all accrued and unpaid interest, late charges, pre-payment
premiums, and all fees, costs and expenses incurred by Agents and Lenders, including without
limitation reasonable legal fees and expenses, including in-house and outside attorneys’ fees
and expenses, due pursuant to the Documents, including the Agreement, the First Amendment and
this Second Amendment, the Agents’ Financial Advisor’s reasonable fees and expenses described
below, and all other Obligations, each as set forth in the Agreement, this Second Amendment or
the other Documents. Borrowers reaffirm, effective as of the Effective Date, that all
Obligations are secured by the security interests previously granted under the Documents to
Agents for the benefit of the Lenders, that the Agents have, and will continue to have after
execution of this Second Amendment, a continuing first (and second, as applicable) priority,
perfected Lien on the Collateral, whether now owned or hereafter acquired, created or arising,
as set forth in the Documents, subject to no Liens other than Liens expressly permitted under
the Documents. Borrowers acknowledge and agree, as of the Effective Date, that nothing herein
contained in any way impairs Agents and Lenders’ existing rights under the Documents or Agents’
first and second (as applicable) priority lien status in the Collateral.
10. Representations and Warranties. Borrowers hereby reaffirm, represent and
warrant that the following are true and accurate through the Effective Date of this Second Amendment: (a)
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Borrowers are duly formed, validly existing and in legal good standing in the
State of Delaware, that each of Borrowers has the power and authority to enter into this Second
Amendment; (b) Borrowers have duly executed and delivered this Second Amendment and this Second
Amendment constitutes the valid, binding and legal obligation of Borrowers; (c) this Second
Amendment is not being entered into with the intent to hinder or defraud any person; and (d) the
recitals set forth in the Recitals of this Second Amendment and all information and documents
provided to Agents and Lenders in connection herewith are true, accurate and complete in all
material respects. Further, Borrowers confirm, reaffirm and restate in all material respects to
the Lenders, on and as of the Effective Date, the representations and warranties set forth in
the Loan Agreement, the Credit Agreement, the Former Forbearance Agreement, the Agreement, and
the other Documents, except as may be set forth herein or to the extent that such
representations and warranties solely relate to a specific earlier date in which case Borrowers
confirm, reaffirm and restate in all material respects such representations and warranties as of
such earlier date. Each request for an Advance under the Revolving Facility shall constitute
Borrowers’ confirmation, reaffirmation and restatement in all material respects of the
representations and warranties set forth in the this Second Amendment, the Agreement, the Loan
Agreement, the Credit Agreement, the Former Forbearance Agreement and the other Documents as of
the date of each such request, except as set forth herein or except to the extent that such
representations and warranties relate to a specific earlier date in which case each such request
shall constitute Borrowers’ confirmation, reaffirmation and restatement in all material respects
of such representations and warranties as of such earlier date.
11. Events of Termination. The occurrence of any one or more of the following
events shall constitute an event of termination (each an “Event of Termination”) under
the Agreement, as modified by the First Amendment and this Second Amendment, it being expressly
acknowledged and agreed that TIME IS OF THE ESSENCE: (a) the occurrence of the Forbearance
Termination Date; (b) a Default or Event of Default under the Documents (other than the
Designated Defaults); (c) the failure of Borrowers to comply with the terms of the Agreement, as
modified by the First Amendment and this Second Amendment, including without limitation the
failure of any covenant set forth in Paragraphs 11-13 of the Agreement, provided
however, that the failure of Borrowers to comply with Section 13c of the Agreement prior to
the date of the First Amendment shall not constitute an Event of Termination, or, the failure to
timely or fully provide the financial information required under Section 7 of this Second
Amendment; (d) the termination of the Subordinate Debt Forbearance Agreement; (e) the payment of
any amount on account of the Subordinate Debt Issue or other Subordinated Debt; (f) the
initiation of any federal or state bankruptcy, insolvency or similar proceeding by or against
one or both Borrowers; and (g) the claim, initiation or commencement of any claim or proceeding
in favor of, through or by Borrowers against any Agent or Lender including any that alleges that
the release of Agents and Lenders set forth herein or in any of the other Documents is invalid
or unenforceable. Upon the occurrence and continuance of any Event of Termination, Agents may,
at their option and with written notice to Borrowers, exercise any and all rights and remedies
pursuant to the Documents.
12. Release of Lenders. By execution of this Second Amendment, Borrowers
acknowledge and confirm that they do not have any offsets, defenses or claims whatsoever against
Agents, Lenders, or any of Agents or Lenders’ subsidiaries, affiliates, officers, directors,
employees, agents, consultants, attorneys, predecessors, successors or assigns whether asserted
or unasserted as of the Effective Date. To the extent that such offsets, defenses or claims may
exist, Borrowers for each of themselves and their successors, assigns, parents, subsidiaries,
affiliates, predecessors, employees, agents, heirs and executors, as applicable (collectively,
“Releasors”), jointly and severally, knowingly, voluntarily and intentionally release
and forever discharge Agents, Lenders, their subsidiaries, affiliates, officers, directors,
employees, agents, consultants, attorneys, predecessors,
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successors and assigns, both present
and former (individually, a “Releasee” and collectively, the “Releasees”) of and
from any and all manner of actions, causes of action, suits, debts, controversies, torts,
damages, judgments, executions, claims and demands whatsoever, including, without limitation,
any so-called “lender liability” claims or defenses which it has, asserted or unasserted, in law
or in equity, which Releasors ever had or now have against the Releasees, including, without
limitation, any presently existing claim or defense whether or not presently suspected,
contemplated or anticipated based upon, or in any manner connected with (i) any transaction,
event circumstance, action, omission, failure to act or occurrence of any sort or type, whether
known or unknown, which occurred, existed, or was taken or permitted prior to the execution of
this Second Amendment with respect to the Obligations, the Documents, including the Agreement or
Former Forbearance Agreement, or the administration thereof (ii) any discussions, commitments,
negotiations, conversations or communications, whether oral or evidenced by a writing of any
sort prior to the execution of this Second Amendment with respect to the Obligations, or (iii)
any thing or matter related to any of the foregoing prior to the execution of this Second
Amendment. Borrowers acknowledge and agree that the inclusion of this paragraph in this Second
Amendment and the execution of this Second Amendment by the Agents and Lenders does not
constitute an acknowledgment or admission by the Agents or Lenders of liability for any matter,
or a precedent upon which any liability may be asserted. If Borrowers assert or commence any
claim, counter-claim, demand, obligation, liability or cause of action in derogation of the
foregoing release or challenges the enforceability of the foregoing release (in each case, a
“Violation”), then the Borrowers jointly and severally agree to pay in addition to such
other damages as any Releasee may sustain as a result of such Violation, all attorneys’ fees and
expenses (including in-house and outside counsels’) incurred by such Releasee as a result of
such Violation. Specifically covered by this Release are the claims or defenses arising on
account of the allegations Borrowers made prior to their execution of this Second Amendment that
Agents or Lenders improperly charged the Default Rate for any period, incorrectly asserted any
covenant violation by Borrowers (including those identified in Paragraph D of the Recitals in
this Second Amendment), or that Borrowers executed any of the Default Letters while under duress
or without the advice of legal counsel.
13. No Waiver by Agents or Lenders. Except as specifically set forth in this
Second Amendment, nothing in this Second Amendment shall extend to or affect in any way any of
the Obligations or any of the rights of Agents or Lenders and remedies of Agents or Lenders
arising under the Documents. Agents and Lenders shall not be deemed to have waived any or all of
such rights or remedies with respect to any default or event or condition which, with notice or
the lapse of time, or both, would become a Default or Event of Default under the Documents and
which upon Borrowers’ execution and delivery of this Second Amendment might otherwise exist or
which might hereafter occur. The failure of Agents or Lenders at any time or times hereafter to
require strict performance by Borrowers of any of the provisions, warranties, terms and
conditions contained in this Second Amendment or in the Documents shall not waive, affect or
diminish any right of Agents or Lenders at any time or times thereafter to demand strict
performance thereof; and, no rights of Agents or Lenders hereunder shall be deemed to have been
waived by any act or knowledge of Agents, Lenders, or either of their agents, officers or
employees, unless such waiver is contained in an instrument in writing signed by an authorized
officer of each of the Agents and Lenders and directed to such Person specifying such waiver.
No waiver by Agents or Lenders of any of their rights shall operate as a waiver of any other of
their rights or any of their rights on a future occasion at any time and from time to time. All
terms and conditions of the Documents remain in full force and effect except to the extent
specifically modified by this Second Amendment.
14. Acknowledgment/Waiver of Legal Counsel; Drafting of Agreement. Borrowers
represent and warrant
that: (a) they are represented by legal counsel of their choice, are fully aware of
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the
terms contained in this Second Amendment and have voluntarily and without coercion or duress of
any kind, entered into this Second Amendment; or (b) they have knowingly and intentionally
waived their right to have legal counsel of their choice review and represent them with respect
to the negotiation and preparation of this Second Amendment. Borrowers further represent and
warrant and acknowledge and agree that they have participated in the drafting of this Second
Amendment.
15. Entire Agreement; No Third-Party Beneficiaries; Binding Affect. The Agreement,
along with the First Amendment and this Second Amendment, constitutes the entire and final
agreement among the parties with respect to the subject matter hereof and there are no
agreements, understandings, warranties or representations among the parties with respect to the
subject matter hereof except as set forth herein. The Agreement, along with the First Amendment
and this Second Amendment, will inure to the benefit and bind the respective heirs,
administrators, executors, representatives, successors and permitted assigns of the parties
hereto. Nothing in this Second Amendment, the Agreement or in the other Documents, expressed or
implied, is intended to confer upon any party other than the parties hereto and thereto any
rights, remedies, obligations or liabilities under or by reason of this Second Amendment, the
Agreement or the other Documents.
16. Governing Law. This Second Amendment is executed and delivered in the State of
New York (the “State”) and it is the desire and intention of the parties that it be in
all respects interpreted according to the laws of the State, without reference to its conflicts
of law principles. Borrowers specifically and irrevocably consent to the jurisdiction and venue
of the federal and state courts of the State with respect to all matters concerning this Second
Amendment, the Agreement or the other Documents or the enforcement of any of the foregoing. The
parties hereto agree that the execution and performance of the Agreement, along with the First
Amendment and this Second Amendment, shall have a State situs and accordingly, consent to
personal jurisdiction in the State.
17. Counterparts. This Second Amendment may be executed in counterparts, each of
which will be deemed an original document, but all of which will constitute a single document.
This document will not be binding on or constitute evidence of a contract between the parties
until such time as a counterpart of this document has been executed by each of the parties and a
copy thereof delivered to each party under this Second Amendment.
18. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT THAT THEY MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM,
SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO THIS
SECOND AMENDMENT, THE AGREEMENT OR THE OTHER DOCUMENTS OR (B) IN ANY WAY CONNECTED WITH OR
PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF AGENTS OR LENDERS AND/OR BORROWERS
WITH RESPECT TO THE DOCUMENTS, INCLUDING THIS SECOND AMENDMENT AND THE AGREEMENT, OR IN
CONNECTION WITH ANY DOCUMENT EXECUTED IN CONNECTION WITH THE DOCUMENTS OR THIS SECOND AMENDMENT
OR THE AGREEMENT OR THE EXERCISE OF ANY PARTIES’ RIGHTS AND REMEDIES UNDER THE DOCUMENTS OR
THIS SECOND AMENDMENT OR THE AGREEMENT (WHETHER SUCH EXERCISE WAS CORRECT OR IN ERROR) OR
OTHERWISE, OR THE CONDUCT OF THE RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF THE FOREGOING
CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. BORROWERS AGREE THAT AGENTS AND LENDERS MAY FILE A COPY OF THIS DOCUMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED FOR AGREEMENT OF BORROWERS
IRREVOCABLY TO
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WAIVE THEIR RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT OF AGENTS OR LENDERS TO
ENTER INTO THIS SECOND AMENDMENT AND THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
DISPUTE OR CONTROVERSY WHERESOVER BETWEEN BORROWERS AND AGENTS OR ANY LENDER SHALL INSTEAD BY
TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. BORROWERS CERTIFY
THAT
NEITHER THE AGENTS NOR LENDERS NOR ANY OF THEIR REPRESENTATIVES, AGENTS OR COUNSEL HAVE
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENTS AND LENDERS WOULD NOT IN THE EVENT OF ANY
SUCH SUIT, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
19. Second Amendment Controls. In the event of any inconsistency between this
Second Amendment and the Agreement or First Amendment, the terms of this Second Amendment shall
control.
SIGNATURES FOLLOW ON NEXT PAGE
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IN WITNESS WHEREOF, the parties have executed this Second Amendment under seal as of the day
and year first written above.
| BORROWER: | ||||||||
| Lexington Precision Corporation | ||||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||||
| Name: | ||||||||
| Its: | President | |||||||
| Lexington Rubber Group, Inc. | ||||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||||
| Name: | ||||||||
| Its: | President | |||||||
| AGENTS AND FORBEARING LENDER: | ||||||||
| CapitalSource Finance LLC | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||||
| Name: | ||||||||
| Its: | Authorized Signatory | |||||||
| Xxxxxxx Business Credit Corporation | ||||||||
| By: | /s/ Xxxx X. XxXxx | |||||||
| Name: | ||||||||
| Its: | VP | |||||||
| CSE Mortgage LLC | ||||||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||||||
| Name: | ||||||||
| Its: | Authorized Signatory | |||||||
| DMD Special Situations Funding LLC | ||||||||
| By: | CapitalSource Servicing LLC, its servicer | |||||||
| Name: | Xxxxx X. Xxxxxx | |||||||
| Its: | ||||||||
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