SECOND AMENDMENT TO
FORBEARANCE AGREEMENT
OLD NATIONAL BANK
, a national banking association
(the "Bank"), OBSIDIAN LEASING COMPANY, INC. , an Indiana
corporation with an address of 111 Monument Circle, Indianapolis,
Indiana, 46204 (the "Borrower"), OBSIDIAN ENTERPRISES, INC.
, PYRAMID COACH, INC. , TIMOTHY S. DURHAM , TERRY
WHITESELL , and JULIA WHITESELL (collectively, the
"Guarantors") (the Borrower and the Guarantors may from time to
time hereinafter be referred to as, the "Obsidian Parties") enter
into this Second Amendment to Forbearance Agreement (the "Second
Amendment"), dated effective as of July 22, 2005.
RECITALS
A.
The Bank and the Obsidian Parties
are parties to, inter alia , that certain Forbearance
Agreement effective as of December 1, 2004, as amended by that
certain First Amendment to Forbearance Agreement effective as of
April 30, 2005 (the "Forbearance Agreement").
B.
The Obsidian Parties have been
engaged in efforts to remedy defaults under the Loan Documents for
several months. These efforts have been directed at paying off the
Obligations.
C.
The Bank and the Obsidian Parties
would now like to set forth the terms upon which the Bank is
willing to extend the Forbearance Period (as defined in the
Forbearance Agreement).
D.
The Bank and the Obsidian Parties
desire to execute this Second Amendment to acknowledge their
consent to the terms of this Second Amendment and to provide for
the amendment of certain of the Loan Documents.
E.
Subject to the terms and conditions
of this Second Amendment, the Bank has agreed to extend the
Forbearance Period to forbear from enforcing its rights and
remedies under the Forbearance Agreement and the Loan
Documents.
F.
Upon a default under this Second
Amendment, the Bank is entitled to immediately pursue all available
legal remedies against the Obsidian Parties, including obtaining a
judgment therein.
BASED ON THE FOREGOING RECITALS
(which are incorporated as representations, warranties, and
covenants of the respective parties, as the case may be), the
parties hereto agree as follows:
TERMS AND
CONDITIONS
1.
Effect of this Second Amendment
to the Forbearance Agreement . This Second Amendment shall not change,
modify, amend, or revise the terms, conditions, and provisions of
the Forbearance Agreement and the Loan Documents, the terms and
provisions of which are incorporated herein by reference, except as
expressly provided herein. This Second Amendment is not intended to
be nor shall it constitute a novation or accord and satisfaction of
the
INDY 1609712v.1
outstanding instruments by and
between the parties hereto. The Bank and the Obsidian Parties agree
that, except as expressly provided herein, all terms and conditions
of the Forbearance Agreement and the Loan Documents shall remain
and continue in full force and effect. The Obsidian Parties
acknowledge and agree that the indebtedness under the Forbearance
Agreement and the Loan Documents remains outstanding and is not
extinguished, paid, or retired by this Second Amendment, or by any
other agreements between the parties hereto prior to the date
hereof, and that the Obsidian Parties are and continue to be fully
liable for all obligations to the Bank contemplated by or arising
out of the Forbearance Agreement or the Loan Documents. The
recitals appearing above are incorporated herein by reference and
made a part hereof. All defined terms used herein not specifically
defined herein shall have the respective meanings set forth in the
Forbearance Agreement or the Loan Documents.
2.
Amendment of the Forbearance
Agreement . Subject to
the satisfaction of the conditions precedent set forth in Section 3
herein, Section 1 of the Forbearance Agreement is amended and
replaced as follows:
1.
Forbearance
. The Bank agrees to forbear from
enforcing its rights and remedies based on the Defaults through
5:00 P.M. (Terre Haute, Indiana time) on August 31, 2005 (the
"Forbea
