EXHIBIT
10.1
THIRD AMENDMENT TO FORBEARANCE
AGREEMENT
THIS THIRD AMENDMENT TO FORBEARANCE
AGREEMENT (the "Third Amendment") is made and entered into as of
September 30, 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 "). On or about
August 28, 2009, Lender, Borrowers, Guarantor and Assignee entered
into a Second Amendment to Forbearance Agreement dated as of August
28, 2009 (the " Second 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 Third 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 September 30,
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 $280,152; (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 Third Amendment is
true and correct; and (9) prior to executing this Third
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 Third
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
