Attached files
| file | filename |
|---|---|
| EX-99.1 - PRESS RELEASE - IMPERIAL INDUSTRIES INC | ipii_ex991.htm |
| 8-K - CURRENT REPORT - IMPERIAL INDUSTRIES INC | ipii_8k.htm |
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EXHIBIT
10.1
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FIFTH AMENDMENT TO
FORBEARANCE AGREEMENT
THIS FIFTH AMENDMENT TO FORBEARANCE AGREEMENT (the "Fifth Amendment") is made
and entered into as of January 29, 2010, 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"). On or about September 30, 2009, Lender,
Borrowers, Guarantor and Assignee entered into a Third Amendment to Forbearance
Agreement dated as of September 30, 2009 (the "Third Amendment"). On
or about November 30, 2009, Lender, Borrowers, Guarantor and Assignee entered
into a Fourth Amendment to Forbearance Agreement dated as of November 30, 2009
(the "Fourth
Amendment"; and together with the First Amendment, Second Amendment and
Third Amendment, the "Prior
Amendments").
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 Fifth 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 January 28, 2010, 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 $71,068; (2) as of the date hereof, the
principal amount of the Lease Obligations, excluding late fees, legal fees and
other expenses and charges, equaled approximately $76,977; (3) 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); (4) Events of Default have occurred and exist under the
Financing Agreements, (5) 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; (6) 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; (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 Fifth Amendment is true and correct; and
(9) prior to executing this Fifth 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 Fifth 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 "January 29, 2010" in the definition of "Forbearance Period"
and by substituting in lieu thereof the date "April 30, 2010".
(b)
In Section
3(b), by adding the following at the end thereof:
In
addition, Obligors agree to pay Lender, jointly and severally, consecutive
monthly fees (the "Facility Fees") and a
termination fee (the "Termination
Fee"). The amount of each monthly Facility Fee shall be $7,500
and each Facility Fee shall be fully earned and due and payable to Lender, in
immediately available funds, on the first day of each calendar month during
which any Obligations or other liabilities remain outstanding under the
Financing Agreements. The Termination Fee shall be in the amount of $15,000 and
the Termination Fee shall be fully earned and payable, in immediately available
funds, on the Forbearance Termination Date. Each Obligor irrevocably authorizes
Lender to make a Revolving Loan to Borrowers on any date on which any fee is due
and payable to Lender in the amount of such fee and to disburse the proceeds of
such Revolving Loan directly to itself in payment of such fee.
4. Ratification
and Reaffirmation. Each Obligor
hereby ratifies and reaffirms the Loan Agreement, the Forbearance Agreement, the
Prior Amendments and the other Financing Agreements and all of its obligations
and liabilities thereunder. Each Obligor also ratifies and reaffirms
the Lease Documents and Lease Guaranties to which such Obligor is a party and
all of such Obligor's obligations and liabilities thereunder, including, without
limitation, Obligors' ongoing obligations under Section 8.1 of the Forbearance
Agreement.
5. No
Novation. Except for the amendments expressly provided in
Section 3 of this
Fifth Amendment, nothing herein shall be deemed to amend or modify any provision
of the Forbearance Agreement, the Prior Amendments, the Loan Agreement or the
other Financing Documents, which shall continue in full force and
effect. This Fifth Amendment is not intended to be, nor shall it be
construed to create, a novation or an accord and satisfaction.
6. Non-Waiver
of Default; Reservation of Rights and Remedies; Strict Compliance. Neither this Fifth Amendment
nor any Revolving Loans made by Lender shall be deemed to constitute a waiver of
or consent to any Stipulated Default, any other Event of Default or any failure
to satisfy any Forbearance Condition or a commitment or agreement make any
Revolving Loans. Lender reserves all of the rights and remedies available to it
under the Financing Agreements and Applicable Law. Each Obligor
hereby agrees that, notwithstanding any temporary variation from the terms of
the Forbearance Agreement or Loan Agreement that may have occurred in the past,
such Obligor, from and after the date hereof, shall strictly comply with all of
the terms and conditions in the Forbearance Agreement, the Loan Agreement and
the other Financing Agreements.
7. Specific
Waivers by Assignee. Assignee hereby
waives and releases (i) any claim or cause of action that may exist against
Lender under F.S.A. § 727.109(8) or otherwise, and (ii) any right that he
may have to seek to surcharge any Collateral for any costs or expenses of, or
that may arise or exist in connection with, the ABC.
8. Payment
of Expenses. Each Obligor
hereby agrees to pay, on
demand, all expenses, including, without limitation, legal fees, incurred
by Lender in connection with the negotiation, drafting, execution and
implementation of this Fifth Amendment.
9. Counterparts;
Electronic Signatures. This Fifth
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall constitute
an original, but all of which taken together shall be one and the same
instrument. In proving this Fifth Amendment, it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought. Any signed counterpart of
this Fifth Amendment that is transmitted by facsimile or electronic transmission
shall be deemed to constitute an original counterpart for all
purposes.
10. Governing
Law; Waiver of Notice of Acceptance. This Fifth
Amendment shall be deemed to be a contract governed by and construed in
accordance with the internal laws of the State of Florida. Each
Obligor hereby waives notice of the acceptance of this Fifth
Amendment.
11. Release of
Claims. To induce Lender to enter into this Fifth Amendment,
each Obligor hereby releases, acquits and forever discharges Lender, and all of
its officers, directors, agents, employees, attorneys, affiliates (including
WFS), successors and assigns, from all liabilities, claims, demands, actions or
causes of action of any kind (if any there be), whether absolute or contingent,
due or to become due, disputed or undisputed, liquidated or unliquidated, at law
or in equity, or known or unknown, that any one or more of them now have or ever
have had against Lender, whether arising under or in connection with any of the
Financing Agreements, the Forbearance Agreement, the Lease Documents, this Fifth
Amendment or otherwise.
12. Waiver of Jury
Trial. To the fullest extent permitted by Applicable Law, each
of the parties hereto waives the right to trial by jury in any action, suit or
proceeding arising out of or related to this Fifth Amendment, the Forbearance
Agreement, the Loan Agreement, the Guaranties or the Lease
Documents.
(Remainder
of page intentionally blank; signatures commence on following page)
IN
WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly
executed and delivered on the date first written above.
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PREMIX-MARBLETITE
MANUFACTURING CO.
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("Borrower")
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By:
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/s/ Howard L. Ehler, Jr. | |
| Title: Vice President | |||
| DFH, INC. | |||
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("Borrower")
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By:
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/s/ Howard L. Ehler, Jr. | |
| Title: Vice President | |||
| JUST-RITE SUPPLY, INC. | |||
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("Borrower")
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By:
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/s/ Howard L. Ehler, Jr. | |
| Title: Vice President | |||
| IMPERIAL INDUSTRIES, INC. | |||
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("Guarantor")
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By:
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/s/ Howard L. Ehler, Jr. | |
| Title: Chief Operating Officer | |||
{signatures
continued on following page}
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Michael Phelan | |
| MICHAEL PHELAN, solely as Assignee and not individually | |||
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Accepted:
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WACHOVIA
BANK,
NATIONAL
ASSOCIATION ("Lender")
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By:
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/s/ Wanda Alverio | |
| Title: President | |||