EXHIBIT
10.1
As of May 29, 2009
Premix-Marbletite Manufacturing
Co.,
DFH, Inc. and Just-Rite Supply,
Inc.
Re:
Amendment #11 (the "Amendment")
to the Loan Agreement (as defined below)
Ladies and Gentlemen:
Reference is made to that certain
Consolidating, Amended and Restated Financing Agreement and
Security Agreement dated January 28, 2000 (as the same has
been or may hereafter be amended or modified from time to time, the
"Loan Agreement"), among Wachovia Bank, National Association,
successor by merger to Congress Financial Corporation (Florida)
(together with its successors and assigns, "Lender"), and
Premix-Marbletite Manufacturing Co., DFH, Inc. (formerly known as
Acro Holdings, Inc., which was formerly known as Acrocrete, Inc.)
and Just-Rite Supply, Inc. (individually and collectively referred
to herein as "Borrower"). As used herein, all capitalized
terms not defined herein shall have the respective meanings set
forth in the Loan Agreement.
WHEREAS, Borrower and Lender desire to
modify certain terms of the Loan Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of Ten
Dollars ($10.00) in hand paid, the mutual conditions and agreements
set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1.
Amendments to Loan
Agreement .
The Loan Agreement is hereby
amended as follows:
A.
By deleting clause (b) of the definition
of "Eligible Accounts" in Section 1.5 of the Loan
Agreement and by substituting in lieu thereof the
following:
(b)
such Accounts are not more than sixty
(60) days past due under the original terms of sale and are not
unpaid more than ninety (90) days after the date of the
original invoice for them;
B.
By deleting clause (n) of the definition
of "Eligible Accounts" in Section 1.5 of the Loan
Agreement and by substituting in lieu thereof the
following:
(n)
such Accounts are not owed by an account
debtor who has Accounts more than sixty (60) days past due under
the original terms of sale or unpaid more than ninety (90) days
after the date of the original invoice for them, which Accounts
constitute more than twenty-five percent (25%) of the total
Accounts of such account debtor;
C.
By deleting the definition of "Maximum
Credit" in Section 1.13 of the Loan Agreement and by
substituting in lieu thereof the following:
1.13
"Maximum Credit" shall mean the amount of
$3,500,000.
D.
By deleting the phrase "for any day
during the term hereof" in the definition of "Adjusted Eurodollar
Rate" in Section 1.27 of the Loan Agreement and by
substituting in lieu thereof "for any day during the term hereof,
the greater of (A) one and one-half percent (1.50%), and
(B)".
E.
By deleting the definition of "Interest
Rate" in Section 1.35 of the Loan Agreement and by
substituting in lieu thereof the following:
1.35
"Interest Rate" shall mean:
(a)
as to Prime Rate Loans, a rate per annum
equal to the Prime Rate plus three percent (3.00%),
and
(b)
as to Eurodollar Rate Loans, a rate per
annum equal to the Average Monthly Adjusted Eurodollar Rate
plus four percent (4.00%).
F.
By deleting clause
Section 2.1(a) of the Loan Agreement and by
substituting in lieu thereof the following:
(a)
Subject to and upon the terms and
conditions contained herein, including without limitation, the
limitations set forth in Section 2.1(c) below and in Section 9.12,
Lender agrees to make Revolving Loans to Borrower from time to time
in amounts requested by Borrower up to the amount equal to the sum
of:
(i)
eighty-five (85%) percent of the Net
Amount of Eligible Accounts, plus
(ii)
the lesser of: (A) $1,750,000 or
(B)(i) thirty percent (30%) of the Value of Eligible
Inventory, less
(iii)
any Availability Reserves.
G.
By deleting Section 9.12 to
the Loan Agreement in its entirety and by substituting in lieu
thereof the following new Section 9.12 :
9.12
Excess Availability
Covenant . Borrower
shall not permit Excess Availability at any time to be less than
$600,000.
H.
By deleting the reference to
"June 1, 2009" in Section 12.1(a) of the Loan
Agreement and by substituting in lieu thereof "June 10,
2009".
2.
Conditions Precedent
. Each of the following is a condition precedent
to any obligation of Lender to extend Loans on terms other than
those set forth in the Loan Agreement prior to this
Amendment:
A.
All requisite corporate action and
proceedings in connection with this Amendment and the other
Financing Agreements shall be satisfactory in form and substance to
Lender, and Lender shall have received all information, and copies
of all documents, including records of requisite corporate actions
and proceedings, which Lender may have requested in connection
therewith, in form and substance satisfactory to Lender and its
counsel; and
B.
This Amendment and all other Financing
Agreements contemplated to be delivered in connection herewith
shall have been duly executed and delivered to Lender, in form and
substance satisfactory to Lender.
3.
Acknowledgments
. Borrower certifies to Lender that
(a) (after giving effect to this Amendment) all
representations and warranties of Borrower contained in the Loan
Agreement are true and correct as of the date of this Amendment,
except to the extent such representations and warranties relate
solely to an earlier date; (b) no Event of Default under the
Loan Agreement, or event which with the passage of time or the
giving of notice, or both, would constitute an Event of Default
under the Loan Agreement, has occurred and is continuing;
(c)&
