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EXHIBIT
10.1
AMENDMENT TO
FORBEARANCE AGREEMENT
THIS AMENDMENT (this
“ Amendment ”), is entered into as of this 10th
day of July, 2008 between Devcon International Corp. (the “
Company ”) and CS Equity II LLC (the “
Investor ”).
WHEREAS, the Company and the
Investor (collectively, the “ Parties ”) are
parties to that certain Forbearance Agreement, dated as of
May 12, 2008 (the “ Forbearance Agreement
”), a copy of which is attached hereto as Exhibit A ;
and
WHEREAS, the Parties desire
to amend the Forbearance Agreement, in the manner and on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in
consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Amendment of
Forbearance Agreement . The Forbearance Agreement is hereby
amended as follows:
Section 1(a)(i)
of the Forbearance Agreement is amended by the deletion of the
reference therein to “July 10, 2008” and the insertion
in lieu thereof of “July 23, 2008”.
2. Confirmation .
Except as specifically amended hereby, the Forbearance Agreement is
and remains unmodified and in full force and effect and is hereby
ratified and confirmed in all respects.
3. Defined Terms .
Capitalized terms that are not defined in this Amendment have the
meanings ascribed to them in the Forbearance Agreement.
4. Miscellaneous
.
(a) No Waiver . Except
as expressly set forth herein, the execution of this Amendment and
any discussions, negotiations, correspondence and other
communications, drafts of documents and meetings among the parties
hereto do not represent and shall not be construed or
relied upon as being (i) a waiver of or prejudicial to any
rights the parties may have or (ii) a waiver of the
parties’ rights under any statute or under any applicable law
or (iii) an admission or declaration against interest by
either party hereto.
(b) Further Assurances
. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Amendment
and the consummation of the transactions contemplated
hereby.
(c) Entire Agreement .
This Amendment supersedes all prior discussions, agreements,
commitments, arrangements, negotiations or understandings, whether
oral or written, of the parties with respect thereto.
(d) Headings . Section
headings herein are included for convenience of reference only and
shall not constitute a part of this Amendment for any other
purpose.
(e) Amendment as
Transaction Document . It is understood and agreed that this
Amendment shall constitute a Transaction Document, and that any
failure of Company to comply with the terms and conditions hereof
shall constitute a Triggering Event under the Certificate of
Designations, without any notice or grace or cure periods (except
as otherwise expressly provided herein or therein).
(f) Notices . All
notices to be given pursuant to this Amendment shall be delivered
in accordance with the terms of the Securities Purchase
Agreement.
(g) No Amendment .
This Amendment may not be modified except by a written instrument
executed by the Company and the Investor.
(h) No Admission .
Nothing contained in this Amendment shall be deemed (i) an
admission by any other party or (ii) a waiver of any rights or
defenses, except with respect to the Forbearance until the
Forbearance Expiration Date.
(i) Construction . All
questions concerning the construction, validity, enforcement and
interpretation of this Amendment shall be governed by the internal
laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of
New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplate
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