EXHIBIT 10.18
As of December 18, 2008
Premix-Marbletite Manufacturing
Co.,
DFH, Inc. and Just-Rite Supply,
Inc.
Re:
Amendment #9 (the "Amendment") to
the Consolidating, Amended and Restated Financing Agreement and
Security Agreement dated January 28, 2000 among Wachovia Bank,
National Association, successor by merger to Congress Financial
Corporation (Florida) ("Lender"), and Premix-Marbletite
Manufacturing Co., DFH, Inc. (formerly known as Acro Holdings,
Inc., formerly known as Acrocrete, Inc.) and Just-Rite Supply, Inc.
(collectively referred to herein as "Borrowers" and individually as
a "Borrower")
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 Lender and Borrowers. As used herein, all
capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement.
WHEREAS, Borrowers have advised Lender
that Just-Rite Supply, Inc. ("Just-Rite") desires to sell certain
real property located in Gulfport, Harrison County, Mississippi to
the Mississippi Department of Transportation ("MDOT"); and have
requested that Lender consent to such sale notwithstanding any
restrictions thereon set forth in the Loan Agreement;
and
WHEREAS, in addition, the parties have
agreed to modify certain terms of the financing arrangements which
are evidenced by the Loan Agreement; and
WHEREAS, Lender is willing to consent to
the one or more sales of the aforementioned real property and to
modify certain terms applicable to such financing arrangements set
forth in the Loan Agreement on the terms and conditions set forth
herein;
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:
Premix-Marbletite, DFH and Just-Rite
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Amendment #9
1.
Consent to Sales of Gulfport Real
Property .
Borrowers have advised Lender of the
proposed sale by Just-Rite to the MDOT of certain real property
located at 17891 16 th Street, Gulfport, Harrison
County, Mississippi 39503 (the "Gulfport Real Property"), for an
aggregate purchase price of $2,812,525, (i) $1,947,450 of which
purchase price is to be paid by the MDOT to Just-Rite in connection
with the sale of the portion of the Gulfport Real Property referred
to as Parcel No. 518-1-00-W and Parcel No. 518-1-00-X, which sale
is anticipated by Borrowers to occur in December of 2008 (the
"December 2008 Sale"), and (ii) $865,075 of which purchase price is
to be paid by the MDOT to Just-Rite in connection with the sale of
the portion of the Gulfport Real Property referred to as Parcel No.
526-0-00-X and Parcel No. 526-1-00-X, which sale is anticipated by
Borrowers to occur in January of 2009 (the "January 2009 Sale"; and
together with the December 2008 Sale, the "Sales"), and Borrowers
have requested that Lender consent to each of the Sales
notwithstanding any restrictions thereon set forth in the Loan
Agreement.
Subject to the terms and conditions set
forth below, Lender hereby consents to each of the
Sales.
A.
Conditions Precedent
. Lender's agreement to consent to
the Sales shall be subject to the satisfaction of each of the
following conditions (the "Conditions") as determined by Lender on
the date that the applicable Sale is consummated:
(1)
No Default . No Default or Event of Default shall exist at
the time of or after the consummation of the applicable
Sale.
(2)
Net Proceeds . Lender shall receive on the date that the
applicable Sale is consummated:
(a)
with respect to the December 2008 Sale,
written confirmation from Borrowers of the payment by Just-Rite of
all amounts owed to Wachovia Bank to satisfy the mortgages
outstanding in respect of the Real Property pursuant to that
certain payoff letter from Wachovia Bank to Just Right Supply Inc.
dated December 3, 2008 (the "Commercial Loan Payoff Letter"),
and
(b)
either (i) payment in immediately
available funds into Wachovia Bank deposit account number
5000000030334 (the "Wachovia Account"), of all proceeds of the
applicable Sale (less (A) the amount paid to Wachovia Bank pursuant
to the Commercial Loan Payoff Letter, and (B) all reasonable costs
and expenses of such Sale, including legal fees and brokers
commissions), the total amount of which proceeds (after giving
effect to the deductions permitted above) shall in no event be less
than (I) $1,450,000 with respect to the December 2008 Sale and (II)
$850,000 with respect to the January 2009 Sale (such amounts
hereinafter collectively referred to as the "Gulfport Net
Proceeds"), or (ii) written confirmation from Borrowers of (A) the
receipt by Just-Rite of payment by means of a check or other
payment item of the applicable portion of the Gulfport Net
Proceeds, and (B) the
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Amendment #9
deposit by Just-Rite of the entire amount
of such Gulfport Net Proceeds into Wachovia Bank deposit account
number 2000709944232 in the name of Just-Rite (the "Just-Rite
Account").
For purposes of paying the amounts set
forth under clause (b) above by wire transfer into the Wachovia
Account, such payment should be made pursuant to the wiring
instructions set forth below:
Wachovia Bank, National
Association
ABA #: 053000219
Name of Account: Wachovia Capital Finance
(Florida)
A/C #: 5000000030334
Reference: Imperial (Just Right -
0KI03)
For purposes of providing written
confirmation of Borrowers' receipt and deposit of a check in the
Just-Rite Account, Borrowers should provide to Lender a copy of the
check received and a deposit slip evidencing deposit in the above
described Just-Rite Account on the date the applicable Sale is
consummated.
(3)
Copies of Purchase
Documents . Lender
shall have received (a) a true and complete copy of the purchase
offers received by Just-Rite from the MDOT for each of the Sales
(the "Purchase Offers"), and (b) true and complete copies of all
agreements and other documents executed in connection with the
closing of the Sales, including, without limitation, each warranty
deed and fair market value offer.
(4)
Consummation of Sales
. Each of the Sales is consummated
pursuant to and in accordance with the terms of the applicable
Purchase Offer.
(5)
Continuing Occupancy
Agreement . Lender shall
have received a fully executed copy of the letter agreement between
the MDOT and one or more of Borrowers setting forth the right of
Borrowers to remain on (and continue to store Collateral on) the
Gulfport Real Property for at least ninety (90) days after the date
of the applicable Sale.
(6)
Disclaimer of Rights in Collateral and
Access Agreement . Lender
shall have received a fully executed letter from counsel to the
MDOT addressed to Lender's Mississippi counsel, David C. Goff, Esq.
of Watkins Ludlam Winter & Stennis, P.A., pursuant to which the
MDOT disclaims any interest it may have in respect of the
Collateral located on the Gulfport Real Property, and that MDOT
will not restrict Lender's access onto the Gulfport Real Property
to inspect and/or remove the Collateral, which letter shall be in
form and substance acceptable to Lender in its sole
discretion.
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Amendment #9
(7)
Fully Executed Counterpart
. Lender shall have received a
counterpart of this letter agreement fully executed by each
Borrower.
(8)
Deadline . The December 2008 Sale shall be consummated
on or before December 31, 2008 and the January 2008 Sale shall
be consummated on or before January 31, 2008.
B.
Application of Proceeds
. Regardless of whether the
Gulfport Net Proceeds are received in the Wachovia Account or the
Just-Rite Account, Lender shall be authorized to apply and reapply
the entire amount of such Gulfport Net Proceeds in connection with
the Sales of the Gulfport Real Property as Lender may elect,
including, without limitation, as reimbursement to Lender for all
costs and legal fees incurred by Lender or its counsel in
connection with the negotiation, execution or performance of this
Amendment, and to the repayment of a portion of the outstanding
Revolving Loans.
2.
Amendments to Loan
Agreement .
The Loan Agreement is hereby
amended as follows:
A.
By deleting clause (a) of Section
1.35 of the Loan Agreement and by substituting in lieu thereof
the following:
(a)
as to Prime Rate Loans, a rate per annum
equal to the Prime Rate plus two and one-half percent
(2.5%),
B.
By adding the following new Sections
1.41 and 1.42 of the Loan Agreement immediately
following Section 1.40 :
1.41
"Gulfport Real Property Sale" shall mean
the initial sale of certain real property owned by Just-Rite to the
Mississippi Department of Transportation, located at 17891 16
th Street, Gulfport, Harrison County, Mississippi
39503.
C.
By deleting subsection (a) of Section
2.1 of the Loan Agreement in its entirety and by substituting
in lieu thereof the following:
(a)
Subject to and upon the terms and
conditions contained herein, 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) fifty percent
(50%) of the Value of Eligible Inventory, provided , that
such percentage shall be
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Amendment #9
reduced by ten percent (10%) upon the
consummation of the Gulfport Real Property Sale, or
(B) $2,500,000, less
(iii)
any Availability Reserves.
D.
By deleti
