EXHIBIT 10.8
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Pledge Agreement"),
dated December 18, 2003, is by LEXINGTON PRECISION CORPORATION, a Delaware
corporation ("Pledgor"), with its chief executive office at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, to and in favor of ABLECO FINANCE LLC, a Delaware
limited liability company, in its capacity as agent pursuant to the Loan
Agreement (as hereinafter defined) acting for and on behalf of the parties
thereto as lenders (in such capacity, "Pledgee").
W I T N E S S E T H:
WHEREAS, Pledgor is now the direct and beneficial owner of all
of the issued and outstanding shares of capital stock of Lexington Rubber Group,
Inc., a Delaware corporation ("Issuer"), as described on Exhibit A annexed
hereto and made a part hereof (the "Pledged Securities");
WHEREAS, Issuer, Pledgor, Pledgee and the parties to the Loan
Agreement as lenders (individually, each a "Lender" and collectively, "Lenders")
have entered into or are about to enter into financing arrangements pursuant to
which Lenders (or Pledgee on behalf of Lenders) may make loans to Pledgor and
Issuer as set forth in the Loan and Security Agreement, dated of even date
herewith, by and among Issuer, Pledgor, Pledgee and Lenders (as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement") and other agreements, documents and
instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, this
Pledge Agreement (all of the foregoing, together with the Loan Agreement, as the
same now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Financing Agreements");
WHEREAS, in order to induce Pledgee and Lenders to enter into
the Loan Agreement and the other Financing Agreements and to make loans to
Pledgor and Issuer pursuant thereto, Pledgor has agreed to secure the payment
and performance of the Obligations (as hereinafter defined) and to accomplish
same by, among other things, (i) executing and delivering to Pledgee this Pledge
Agreement, (ii) delivering to Pledgee the Pledged Securities which are
registered in the name of Pledgor, together with appropriate powers duly
executed in blank by Pledgor, and (iii) delivering to Pledgee, at Pledgee's
reasonable request, any and all other documents which Pledgee deems necessary to
protect Pledgee's interests hereunder.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby agrees as follows:
1. GRANT OF SECURITY INTEREST
As collateral security for the prompt performance, observance
and full and final payment of all of the Obligations, Pledgor hereby assigns,
pledges, hypothecates, transfers and sets over to Pledgee and grants to Pledgee
(for itself and the ratable benefit of Lenders) a security interest in and lien
upon: (a) the Pledged Securities, together with all cash dividends, stock
dividends, interests, profits, redemptions, warrants, subscription rights,
stock, securities options, substitutions, exchanges and other distributions now
or hereafter distributed by Issuer or which may hereafter be delivered to the
possession of Pledgor or Pledgee with respect thereto, (b) Pledgor's records
with respect to the foregoing, and (c) the proceeds (including proceeds of
proceeds) of all of the foregoing (all of the foregoing being collectively
referred to herein as the "Pledged Property").
2. OBLIGATIONS SECURED
The security interest, lien and other interests granted to
Pledgee (for itself and the ratable benefit of Lenders) pursuant to this Pledge
Agreement shall secure the prompt performance and payment in full of any and all
obligations, liabilities and indebtedness of every kind, nature and description
owing by Pledgor to Pledgee and/or any Lender and/or their respective
affiliates, including principal, interest, charges, fees, costs and expenses,
however evidenced, whether as principal, surety, endorser, guarantor or
otherwise, arising under this Pledge Agreement, the Loan Agreement or the other
Financing Agreements, whether now existing or hereafter arising, whether arising
before, during or after the initial or any renewal term of the Loan Agreement or
after the commencement of any case with respect to Pledgor under the United
States Bankruptcy Code or any similar statute (including, without limitation,
the payment of interest and other amounts which would accrue and become due but
for the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured (all of the foregoing being
collectively referred to herein as the "Obligations").
3. REPRESENTATIONS, WARRANTIES AND COVENANTS
Pledgor hereby represents, warrants and covenants with and to
Pledgee and Lenders the following (all of such representations, warranties and
covenants being continuing so long as any of the Obligations are outstanding):
(a) The Pledged Securities are duly authorized, validly
issued, fully paid and non-assessable capital stock of Issuer and constitute
Pledgor's entire equity interest in Issuer and are not registered, nor has
Pledgor authorized the registration thereof, in the name of any person or entity
other than Pledgor or Pledgee. The Pledged Securities constitute 100% of the
issued shares of capital stock of Issuer as of the date hereof.
(b) The Pledged Property is directly, legally and
beneficially owned by Pledgor, free and clear of all claims, liens, pledges and
encumbrances of any kind, nature or description, except for the pledge and
security interest in favor of Pledgee hereunder and under
the Loan Agreement, for itself and the ratable benefit of Lenders, and the
pledges and security interests permitted under the Loan Agreement.
(c) The Pledged Property is not subject to any
restrictions relative to the transfer thereof and Pledgor has the right to
transfer and hypothecate the Pledged Property free and clear of any liens,
encumbrances or restrictions, except as provided in or pursuant to the Financing
Agreements.
(d) The Pledged Property is duly and validly pledged to
Pledgee, for itself and the ratable benefit of Lenders, and no consent or
approval of any governmental or regulatory authority or of any securities
exchange or the like, nor any consent or approval of any other third party, was
or is necessary to the validity and enforceability of this Pledge Agreement.
(e) Pledgor authorizes Pledgee to: (i) store, deposit and
safeguard the Pledged Property, (ii) perform any and all other acts which
Pledgee in good xxxxx xxxxx necessary or appropriate for the protection and
preservation of the Pledged Property or its value or Pledgee's security interest
therein and (iii) pay any charges or expenses which Pledgee deems necessary for
the foregoing purpose, but without any obligation to do so. Any obligation of
Pledgee for reasonable care for the Pledged Property in Pledgee's possession
shall be limited to the same degree of care which Pledgee uses for similar
property pledged to Pledgee by other persons.
(f) If Pledgor shall become entitled to receive or
acquire, or shall receive any stock certificate, or stock option or right with
respect to the stock of Issuer (including without limitation, any certificate
representing a dividend or a distribution or exchange of or in connection with
reclassification of the Pledged Securities) whether as an addition to, in
substitution of, or in exchange for any of the Pledged Property or otherwise
(except as otherwise permitted by Section 3(g) hereof), Pledgor agrees to accept
same as Pledgee's agent, to hold same in trust for Pledgee and to deliver same
forthwith to Pledgee or Pledgee's agent or bailee in the form received, with the
endorsement(s) of Pledgor where necessary and/or appropriate powers and/or
assignments duly executed to be held by Pledgee or Pledgee's agent or bailee
subject to the terms hereof, as further security for the Obligations.
(g) Pledgor shall not, without the prior consent of
Pledgee, directly or indirectly, sell, assign, transfer, or otherwise dispose
of, or grant any option with respect to the Pledged Property, nor shall Pledgor
create, incur or permit any further pledge, hypothecation, encumbrance, lien,
mortgage or security interest with respect to the Pledged Property other than
pursuant to or as provided in the Financing Agreements.
(h) Notwithstanding anything in this Agreement to the
contrary, so long as no Event of Default (as hereinafter defined) has occurred
and is continuing, Pledgor shall have the right to vote, exercise all rights and
take any other actions with respect to the Pledged Securities, except as
expressly prohibited herein, and to receive any distributions in respect of the
Pledged Securities.
(i) Pledgor shall not permit Issuer, directly or
indirectly, to issue, sell, grant, assign, transfer or otherwise dispose of, any
additional shares of capital stock of Issuer or any
option or warrant with respect to, or other right or security convertible into,
any additional shares of capital stock of Issuer, now or hereafter authorized,
unless all such additional shares, options, warrants, rights or other such
securities are made and shall remain part of the Pledged Property subject to the
pledge and security interest granted herein.
(j) Pledgor shall pay all charges and assessments of any
nature against the Pledged Property or with respect thereto prior to said
charges and/or assessments being delinquent except such charges and assessments
being contested in good faith by Pledgor.
(k) Pledgor shall promptly reimburse Pledgee on demand,
together with interest at the rate then applicable to the Obligations set forth
in the Loan Agreement, for any charges, assessments or expenses paid or incurred
by Pledgee in Pledgee's discretion for the protection, preservation and
maintenance of the Pledged Property and the enforcement of Pledgee's (on behalf
of itself and Lenders) rights hereunder, including, without limitation,
reasonable attorneys' fees and legal expenses incurred by Pledgee in protecting,
collecting or enforcing its rights in the Pledged Property or otherwise
hereunder.
(l) Pledgor shall furnish, or cause to be furnished, to
Pledgee such information concerning Issuer and the Pledged Property as Pledgee
may from time to time reasonably request in good faith as required pursuant to
the Loan Agreement.
(m) Pledgee may notify Issuer or the appropriate transfer
agent of the Pledged Securities to register the security interest and pledge
granted herein and honor the rights of Pledgee and Lenders with respect thereto.
(n) Pledgor waives: (i) all rights to require Pledgee or
any Lender to proceed against any other person, entity or collateral or to
exercise any remedy, (ii) to the extent permitted under applicable law, the
defense of the statute of limitations in any action upon any of the Obligations,
(iii) any right of subrogation or interest in the Obligations or Pledged
Property until all Obligations have been paid in full, (iv) any rights to notice
of any kind or nature whatsoever, unless specifically required in this Pledge
Agreement or the Loan Agreement or non-waivable under any applicable law, and
(v) to the extent permitted under applicable law, its rights under Section 9-207
of the Uniform Commercial Code. Pledgor agrees that the Pledged Property, other
collateral, or any other guarantor or endorser may be released, substituted or
added with respect to the Obligations, in whole or in part, without releasing or
otherwise affecting the liability of Pledgor, the pledge and security interests
granted hereunder, or this Pledge Agreement. Pledgee, for and on behalf of
itself and Lenders, is entitled to all of the benefits of a secured party set
forth in Section 9-207 of the Uniform Commercial Code.
4. EVENTS OF DEFAULT
The occurrence or existence of any Event of Default under the
Loan Agreement is referred to herein individually as an "Event of Default", and
collectively as "Events of Default".
5. RIGHTS AND REMEDIES
At any time an Event of Default exists or has occurred and is
continuing, in addition to all other rights and remedies of Pledgee and Lenders,
whether provided under this Pledge Agreement, the Loan Agreement, the other
Financing Agreements, applicable law or otherwise, Pledgee shall have the
following rights and remedies which may be exercised without notice to, or
consent by, Pledgor except as such notice or consent is expressly provided for
hereunder or is required by law and not waivable by Pledgor:
(a) Pledgee, at its option, shall be empowered to
exercise its continuing right (at any time that an Event of Default exists or
has occurred and is continuing) to instruct Issuer (or the appropriate transfer
agent of the Pledged Securities) to register any or all of the Pledged
Securities in the name of Pledgee or in the name of Pledgee's nominee
(including, without limitation, any Lender) and Pledgee may complete, in any
manner Pledgee may deem expedient, any and all stock powers, assignments or
other documents heretofore or hereafter executed in blank by Pledgor and
delivered to Pledgee. After said instruction, and without further notice,
Pledgee shall have the exclusive right to exercise all voting and corporate
rights with respect to the Pledged Securities and other Pledged Property, and
exercise any and all rights of conversion, redemption, exchange, subscription or
any other rights, privileges, or options pertaining to any shares of the Pledged
Securities or other Pledged Property as if Pledgee were the absolute owner
thereof, including, without limitation, the right to exchange, in its
discretion, any and all of the Pledged Securities and other Pledged Property
upon any merger, consolidation, reorganization, recapitalization or other
readjustment with respect thereto. Upon the exercise of any such rights,
privileges or options by Pledgee, Pledgee shall have the right to deposit and
deliver any and all of the Pledged Securities and other Pledged Property to any
committee, depository, transfer agent, registrar or other designated agency upon
such terms and conditions as Pledgee may determine, all without liability,
except to account for property actually received by Pledgee. However, Pledgee
shall have no duty to exercise any of the aforesaid rights, privileges or
options (all of which are exercisable in the sole discretion of Pledgee) and
shall not be responsible for any failure to do so or delay in doing so.
(b) In addition to all the rights and remedies of a
secured party under the Uniform Commercial Code or other applicable law, Pledgee
shall have the right, at any time and without demand of performance or other
demand, advertisement or notice of any kind (except the notice specified below
of time and place of public or private sale) to or upon Pledgor or any other
person (all and each of which demands, advertisements and/or notices are hereby
expressly waived to the extent permitted by applicable law), to proceed
forthwith to collect, redeem, recover, receive, appropriate, realize, sell, or
otherwise dispose of and deliver said Pledged Property or any part thereof in
one or more lots at public or private sale or sales at any exchange, broker's
board or at any of Pledgee's offices or elsewhere at such prices and on such
terms as Pledgee may deem best. The foregoing disposition(s) may be for cash or
on credit or for future delivery without assumption of any credit risk, with
Pledgee having the right to purchase all or any part of said Pledged Property so
sold at any such sale or sales, public or private, free of any right or equity
of redemption in Pledgor, which right or equity is hereby expressly waived or
released by Pledgor to the fullest extent permitted by applicable law. The
proceeds of any such collection, redemption, recovery, receipt, appropriation,
realization, sale or other disposition
shall be applied in accordance with Section 6.4(a) of the Loan Agreement and
then to the payment of any other amounts required by applicable law, including
Section 9-615(a)(3) of the Uniform Commercial Code, with Pledgor to be and
remain liable for any deficiency. Pledgor shall be liable to Pledgee and Lenders
for the payment on demand of all such costs and expenses, together with interest
at the rate then applicable to the Obligations set forth in the Loan Agreement,
and any reasonable attorneys' fees and legal expenses. Pledgor agrees that ten
(10) business days prior written notice by Pledgee designating the place and
time of any public sale or of the time after which any private sale or other
intended disposition of any or all of the Pledged Property is to be made, is
reasonable notification of such matters.
(c) Pledgor and Pledgee recognize that Pledgee may be
unable to effect a public sale of all or part of the Pledged Property by reason
of certain prohibitions contained in the Securities Act of 1933, as amended, as
now or hereafter in effect or in applicable Blue Sky or other state securities
law, as now or hereafter in effect, but may be compelled to resort to one or
more private sales to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Pledged Property for their own
account for investment and not with a view to the distribution or resale
thereof. If at the time of any sale of the Pledged Property or any part thereof,
the same shall not, for any reason whatsoever, be effectively registered (if
required) under the Securities Act of 1933 (or other applicable state securities
law), as then in effect, Pledgee in its sole and absolute discretion is
authorized to sell such Pledged Property or such part thereof by private sale in
such manner and under such circumstances as Pledgee or its counsel may deem
necessary or advisable in order that such sale may legally be effected without
registration. Pledgor agrees that private sales so made may be at prices and
other terms less favorable to the seller than if such Pledged Property were sold
at public sale, and that Pledgee has no obligation to delay the sale of any such
Pledged Property for the period of time necessary to permit Issuer, even if
Issuer would agree, to register such Pledged Property for public sale under such
applicable securities laws. Pledgor agrees that any private sales made under the
foregoing circumstances shall be deemed to have been in a commercially
reasonable manner.
(d) All of the rights and remedies of Pledgee and
Lenders, including, but not limited to, the foregoing and those otherwise
arising under this Pledge Agreement, the Loan Agreement and the other Financing
Agreements, the instruments comprising the Pledged Property, applicable law or
otherwise, shall be cumulative and not exclusive and shall be enforceable
alternatively, successively or concurrently as Pledgee may deem expedient. No
failure or delay on the part of Pledgee or any Lender in exercising any of its
options, powers or rights or partial or single exercise thereof, shall
constitute a waiver of such option, power or right.
6. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS;
GOVERNING LAW
(a) The validity, interpretation and enforcement of this
Pledge Agreement and the other Financing Agreements and any dispute arising out
of the relationship between the parties hereto, whether in contract, tort,
equity or otherwise, shall be governed by the internal laws of the State of New
York excluding any principles of conflicts of laws or other rule of law
that would cause the application of the law of any jurisdiction other that the
laws of the State of New York.
(b) Each of Pledgor and Pledgee irrevocably consents and
submits to the non-exclusive jurisdiction of the Supreme Court of the State of
New York for New York County and the United States District Court for the
Southern District of New York and waives any objection based on venue or forum
non conveniens with respect to any action instituted therein arising under this
Pledge Agreement or any of the other Financing Agreements or in any way
connected with or related or incidental to the dealings of the parties hereto in
respect of this Pledge Agreement or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising, and whether in contract, tort, equity or otherwise, and
agrees that any dispute with respect to any such matters shall be heard only in
the courts described above (except that Pledgee and Lenders shall have the right
to bring any action or proceeding against Pledgor or its property in the courts
of any other jurisdiction which Pledgee deems necessary or appropriate in order
to realize on the Pledged Property or to otherwise enforce its rights against
Pledgor or its property).
(c) Pledgor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth
herein and service so made shall be deemed to be completed five (5) days after
the same shall have been so deposited in the U.S. mails, or, at Pledgee's
option, by service upon Pledgor in any other manner provided under the rules of
any such courts. Within thirty (30) days after such service, Pledgor shall
appear in answer to such process, failing which Pledgor shall be deemed in
default and judgment may be entered by Pledgee against Pledgor for the amount of
the claim and other relief requested.
(d) EACH OF PLEDGOR AND PLEDGEE HEREBY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING
UNDER THIS PLEDGE AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF PLEDGOR AND
PLEDGEE OR ANY LENDER IN RESPECT OF THIS PLEDGE AGREEMENT OR ANY OF THE OTHER
FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY
OR OTHERWISE. EACH OF PLEDGOR AND PLEDGEE HEREBY AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT PLEDGOR OR PLEDGEE MAY FILE AN ORIGINAL COUNTERPART OF A
COPY OF THIS PLEDGE AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Pledgee and Lenders shall not have any liability to
Pledgor (whether in tort, contract, equity or otherwise) for losses suffered by
Pledgor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Pledge Agreement, or any act,
omission or event occurring in connection herewith, unless it is
determined by a final and non-appealable judgment or court order binding on
Pledgee or such Lender, that the losses (including losses resulting from a
breach of Pledgee's duty of care as set forth in Section 3(e) of this Agreement)
were the result of acts or omissions constituting gross negligence or willful
misconduct.
7. MISCELLANEOUS
(a) Pledgor agrees that at any time and from time to time
upon the written request of Pledgee, Pledgor shall execute and deliver such
further documents, including, but not limited to, irrevocable proxies or stock
powers, in form reasonably satisfactory to counsel for Pledgee, and will take or
cause to be taken such further acts as Pledgee may reasonably request in order
to effect the purposes of this Pledge Agreement and perfect or continue the
perfection of the security interest in the Pledged Property granted to Pledgee
hereunder.
(b) Beyond the exercise of reasonable care to assure the
safe custody of the Pledged Property (whether such custody is exercised by
Pledgee, or Pledgee's nominee, agent or bailee) Pledgee or Pledgee's nominee
agent or bailee shall have no duty or liability to protect or preserve any
rights pertaining thereto and shall be relieved of all responsibility for the
Pledged Property upon surrendering it to Pledgor or foreclosure with respect
thereto.
(c) All notices, requests and demands to or upon the
respective parties hereto shall be in writing and shall be deemed to have been
duly given or made: if delivered in person, immediately upon delivery; if by
nationally recognized overnight courier service with instructions to deliver the
next business day, one (1) business day after sending; and if by registered or
certified mail, return receipt requested, five (5) days after so mailing. All
notices, requests and demands upon the parties are to be given to the following
addresses (or to such other address as any party may designate by notice in
accordance with this Section):
If to Pledgor: Lexington Precision Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: President
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
with a copy to: Xxxxx Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
If to Pledgee: Ableco Finance LLC
and Lenders: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxx
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: 000-000-0000
Telecopy No.: 000-000-0000
(d) All references to the plural herein shall also mean
the singular and to the singular shall also mean the plural. All references to
Pledgor, Issuer, Pledgee and any Lender pursuant to the definitions set forth in
the recitals hereto, or to any other person herein, shall include their
respective successors and assigns. The words "hereof," "herein," "hereunder,"
"this Pledge Agreement" and words of similar import when used in this Pledge
Agreement shall refer to this Pledge Agreement as a whole and not any particular
provision of this Pledge Agreement and as this Pledge Agreement now exists or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced. An Event of Default shall exist or continue or be continuing until
such Event of Default is waived in accordance with the terms of the Loan
Agreement. All references to the term "Person" or "Persons" herein shall mean
any individual, sole proprietorship, partnership, corporation (including,
without limitation, any corporation which elects subchapter S status under the
Internal Revenue Code of 1986, as amended), limited liability company, limited
liability partnership, business trust, unincorporated association, joint stock
company, trust, joint venture or other entity or any government or any agency,
instrumentality or political subdivision thereof.
(e) This Pledge Agreement shall be binding upon Pledgor
and its successors and assigns and inure to the benefit of and be enforceable by
Pledgee and Lenders and their respective successors and assigns.
(f) If any provision of this Pledge Agreement is held to
be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Pledge Agreement as a whole, but this Pledge Agreement shall be
construed as though it did not contain the particular provision held to be
invalid or unenforceable and the rights and obligations of the parties shall be
construed and enforced only to such extent as shall be permitted by applicable
law.
(g) Neither this Pledge Agreement nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Pledgee and Pledgor. Neither Pledgee nor Lenders shall, by any act, delay,
omission or otherwise be deemed to have expressly or impliedly waived any of
their respective rights, powers and/or remedies unless such waiver shall be in
writing and signed by an authorized officer of Pledgee. Any such waiver shall be
enforceable only to the extent specifically set forth therein. A waiver by
Pledgee or any Lender of any right, power and/or remedy on any one occasion
shall not be construed as a bar to or waiver of any such right, power and/or
remedy which Pledgee or such Lender would otherwise have on any future occasion,
whether similar in kind or otherwise.
(h) Notwithstanding anything to the contrary in this
Pledge Agreement, (i) the rights of Pledgee and Lenders under this Pledge
Agreement are subject to the terms of the Intercreditor Agreement (as defined in
the Loan Agreement), (ii) any obligation of Pledgor in this Pledge Agreement
that requires delivery of Pledged Property to, possession or control of Pledged
Property with, the pledge, assignment, endorsement or transfer of Pledged
Property to or the registration of Pledged Property in the name of, Pledgee
shall be deemed complied with and satisfied if such delivery of Pledged Property
is made to, such possession or control of Pledged Property is with, or such
Pledged Property be assigned, endorsed or transferred to or registered in the
name of, the Working Capital Agent (as defined in the Loan Agreement), and (iii)
in the event of a direct conflict between the terms and provisions of this
Pledge Agreement and the terms and provisions of the Pledge Agreement, dated as
of even date herewith, made by Pledgor in favor of Working Capital Agent (the
"WC Pledge Agreement"), it is the intention of Pledgor, Pledgee and Lenders that
such provisions shall be read together and construed, to the fullest extent
possible, to be in concert with each other; however, in the event of any actual,
irreconcilable conflict that cannot be resolved as aforesaid, the terms and
provisions of the WC Pledge Agreement shall control and, in such case, Pledgor
shall not be in breach of its obligations under this Pledge Agreement as a
result of complying with the terms and provisions of the WC Pledge Agreement;
provided that, notwithstanding the foregoing, nothing contained in this Section
7(h) shall limit or otherwise adversely effect the grant of a lien on or a
security interest in any Pledged Property under Section 1 of this Pledge
Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Pledgor has executed this Pledge Agreement
as of the day and year first above written.
LEXINGTON PRECISION CORPORATION
By: /s/ Xxxxxx Xxxxxx
________________________________
Name: Xxxxxx Xxxxxx
Title: President
ACKNOWLEDGED AS TO SECTION 3(e):
ABLECO FINANCE LLC, as Agent
By: /s/ Xxxxxx Xxxx
_____________________________
Name: Xxxxxx Xxxx
Title: Senior Vice President
EXHIBIT A
TO
PLEDGE AND SECURITY AGREEMENT
Issuer Certificate No. No. of Shares Percentage
------ --------------- ------------- ----------
Lexington Rubber Group, Inc. 1 1 100%
