Exhibit 10.1
AMENDMENT TO FORBEARANCE AND
AMENDMENT AGREEMENT
THIS AMENDMENT TO FORBEARANCE AND
AMENDMENT AGREEMENT (this “ Amendment ”) is made
as of this 13th day of April, 2007, by and among Devcon
International Corp., a Florida corporation (the “
Company ”), and CS Equity II LLC (the “
Investor ”).
Recitals
WHEREAS, the Company and Investor are parties to that
certain Forbearance and Amendment Agreement, dated as of
March 30, 2007 (the “ Agreement ”).
Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Agreement; and
WHEREAS, the Agreement requires the parties to, as soon
as practicable, but no later than ten (10) Business Days of
the date of the Agreement, agree to attach as Exhibit A to
the Agreement a form of Amended and Restated Certificate of
Designations (the “ Amended Certificate of
Designations ”) setting forth certain revised terms of
the Company’s Series A Convertible Preferred Stock, par value
$.10 (the “Preferred Stock”), including, without
limitation, a reduction in the conversion price of the Preferred
Stock to $6.75, allowance for the accrual of dividends on the
Preferred Stock at a rate equal to 10% per annum, which
dividends may be payable in kind; and a revision of the definition
of the Leverage Ratio (as such term is defined in the original
Certificate of Designations), which revised definition shall
provide for the Leverage Ratio to be calculated as a multiple of
recurring monthly revenue (“ RMR ”) as opposed
to EBITDA and a revision of the Maximum Leverage Ratio covenant set
forth in the original Certificate of Designations to require such
Maximum Leverage Ratio to equal 38x RMR, commencing on
June 30, 2008; and
WHEREAS , the parties desire additional time to agree to
the terms of such Amended Certificate of Designations.
NOW, THEREFORE,
in consideration of the premises and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Section 2(b) of the
Agreement is hereby amended by deleting the words “ten
(10) Business Days of the date hereof” and substituting
the words “April 30, 2007” therefor.
2. Except as specifically amended
hereby, the Agreement is and remains unmodified and in full force
and effect and is hereby ratified and confirmed.
3. 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 fed
