EXHIBIT 10.1
SECOND AMENDMENT TO FORBEARANCE
AGREEMENT
THIS SECOND AMENDMENT TO FORBEARANCE
AGREEMENT (the "Second Amendment") is made and entered into as of
August 28, 2009, by and among PREMIX-MARBLETITE MANUFACTURING CO. ("
Premix "), DFH, INC. , formerly known as Acrocrete,
Inc. and Acro Holdings, Inc. (" DFH "), and JUST-RITE
SUPPLY, INC. (" Just-Rite "), each a Florida corporation
(each a " Borrower " and collectively, " Borrowers
"); IMPERIAL INDUSTRIES, INC. , a Delaware corporation ("
Guarantor "); MICHAEL PHELAN, as assignee for the
benefit of the creditors of Just-Rite, and not individually ("
Assignee "); and WACHOVIA BANK, NATIONAL ASSOCIATION
, a national banking association and successor to Congress
Financial Corporation (Florida) under the Loan Agreement (defined
below) (" Lender ").
Recitals :
Lender and Borrowers entered into a
certain Consolidating, Amended and Restated Financing Agreement and
Security Agreement dated January 28, 2000 (as amended, restated,
modified and supplemented from time to time, the " Loan
Agreement "), pursuant to which Lender has made loans and other
extensions of credit to Borrowers, which loans and extensions of
credit are secured by security interest in and liens upon all of
the assets of Borrowers and guaranteed unconditionally by
Guarantor.
Just-Rite has made an assignment for the
benefit of its creditors under Florida law, styled In re
Just-Rite Supply, Inc., Assignor, to Michael Phelan, Assignee ,
Case No. CACE 2009 09032744XXXX (04), In the Circuit Court of the
17th Judicial Circuit, In and For Broward County, Florida (the "
ABC "). Assignee is the assignee in the
ABC.
Lender, Borrowers and Guarantor entered
into a Forbearance and Amendment Agreement dated June 9, 2009 (as
at any time amended, the " Forbearance Agreement "). By
separate written agreement, Assignee has agreed to be bound by the
Loan Agreement and the Forbearance Agreement. On or
about August 7, 2009, Lender, Borrowers, Guarantor and Assignee
entered into a First Amendment to Forbearance Agreement dated as of
August 7, 2009 (the " First Amendment ").
Borrowers, Guarantor and Assignee have
requested that the Forbearance Agreement be amended, and Lender is
willing to amend the Forbearance Agreement as hereinafter set
forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00)
in hand paid and in consideration of the premises and the
mutual covenants herein contained, the parties hereto, intending to
be legally bound hereby, agree as follows:
1.
Definitions
. All capitalized terms used in
this Second Amendment, unless otherwise defined, shall have the
meanings ascribed to such terms in the Forbearance
Agreement; provided that as used
herein, the term "Obligor" shall mean and include Borrowers,
Guarantor and the Assignee (solely in his capacity as assignee in
the ABC, and not individually).
2.
Acknowledgments and Stipulations of
Obligors .
(a)
Each Obligor acknowledges, stipulates and
agrees that (1) as of the opening of business on August 27,
2009, the aggregate net principal balance of Revolving Loans
outstanding under the Loan Agreement, exclusive of accrued
interest, costs, bank fees and attorneys' fees chargeable to
Obligors under the Financing Agreements, totaled approximately
$352,099; (2) all of the Obligations are absolutely due and
owing to Lender without any defense, deduction, offset or
counterclaim (and, to the extent any Obligor had any defense,
deduction, offset or counterclaim on the date hereof, the same
is hereby waived); (3) Events of Default have occurred and
exist under the Financing Agreements, (4) the Financing
Agreements executed by each Borrower are legal, valid and binding
obligations of such Borrower enforceable against such Borrower in
accordance with their terms; (5) the security interests
granted by each Borrower to Lender in the Accounts, Inventory,
general intangibles and other Collateral are duly perfected
security interests in such Collateral; (6) the payment
expected by the Assignee to be received from the Mississippi
Department of Transportation as reimbursement of relocation
expenses related to Just-Rite's Gulfport, Mississippi, location
constitutes a general intangible or proceeds of a general
intangible as to which Lender has a security interest; (7) each of
the Guaranty and Waiver Agreements executed by Guarantor
(collectively, the " Guaranties ") is a legal, valid and
binding obligation of Guarantor and is enforceable against
Guarantor in accordance with its terms; (8) each of the
recitals contained at the beginning of this Second Amendment
is true and correct; and (9) prior to executing this Second
Amendment, each Obligor consulted with and had the benefit of
advice of legal counsel of its own selection and each has relied
upon the advice of such counsel, and in no part upon any
representation of Lender concerning the legal effects of this
Second Amendment or any provision hereof.
(b)
In addition, each Obligor acknowledges,
stipulates and agrees that certain Forbearance Conditions have not
been satisfied.
(c)
Further, each Obligor acknowledges,
stipulates and agrees that, considering the inability of Obligors
to determine and report to Lender the quantity, quality or value of
the remaining assets owned by Just-Rite, the widespread disputes
that exist between Just-Rite (or the Assignee on behalf of
Just-Rite) and the customers of Just-Rite with respect to Accounts
owed by such customers, the collection risks that exist with
respect to undisputed Accounts owed to Just-Rite, and the
inaccuracies in Just-Rite's previous assessments of the quantity
and value of its Inventory, none of the assets of Just-Rite
qualifies or should be treated as Eligible Accounts or Eligible
Inventory.
3.
Amendments to Forbearance
Agreement .
The Forbearance Agreement is hereby
amended as follows:
(a)
In Section 1 , by deleting the
date "August 31, 2009" in the definition of "Forbearance Period"
and by substituting in lieu thereof the date
