Exhibit 10.1


 


FORBEARANCE AND AMENDMENT AGREEMENT


 


FORBEARANCE
AND AMENDMENT AGREEMENT  dated as of February 22,
2010 (“Forbearance Agreement”) by and among WM Coffman LLC, a limited
liability corporation formed under the laws of the State of Delaware (the
“Borrower”), the financial institutions set forth on the signature pages hereto
(each a “Lender” and collectively, “Lenders”) and PNC Bank, National
Association (“PNC”), as agent for Lenders (in such capacity, the “Agent”).


 


Background


 


Pursuant
to a Revolving Credit, Term Loan and Security Agreement dated as of June 8,
2009 as heretofore and hereafter amended, supplemented and/or otherwise
modified (the “Loan Agreement”), Agent and Lenders made loans, advances and/or
other financial accommodations to Borrower.


 


There
are various Events of Default now existing under the Loan Agreement as listed
on the “Schedule of Designated Defaults” annexed hereto (“Designated Defaults”)
by reason of which Agent and Lenders have no obligation to make any additional
Advances and Agent has the full legal right to exercise its rights and remedies
under the Loan Agreement.  Borrower has
requested that Agent and Lenders forbear for a period of time from exercising
their rights and remedies under the Loan Agreement and that Agent and Lenders
continue to make Advances to Borrower. 
Agent and Lenders are prepared to establish a period of forbearance and
continue to make Advances to Borrower on the terms and conditions set forth
below.


 


Agreement


 


NOW, THEREFORE, in consideration of any loan, advance, grant
of credit or financial accommodation heretofore or hereafter made to or for the
account of Borrower by Agent and/or Lenders, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


 


1.             Definitions.  All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.


 


2.             Acknowledgements.  Borrower acknowledges the occurrence and
existence of the Designated Defaults, and acknowledges and agrees that (a) it
is in default of its obligations to Agent and Lenders under the Loan Agreement,
(b) that pursuant to the terms of Section 8.2 of the Loan Agreement,
Agent and Lenders have no further obligations, contractual or otherwise, to
continue to make Advances to Borrower and (c) that pursuant to Section 11.1
of the Loan Agreement, Agent and Lenders have the present and absolute right to
declare all Obligations immediately due and payable.   Borrower hereby affirms and acknowledges
that (a) as of February 11, 2009 there is presently due and owing to
Lenders the principal amount of $5,339,104.28 together with accrued interest,
fees, costs and expenses (collectively, the “Amount”), (b) the Amount is
due and owing without defense, offset or counterclaim of any kind or nature
whatsoever, and (c) the Loan Agreement, the Other Documents, and all
agreements, documents and instruments executed and/or delivered by Borrower
arising from or related to the 


 


 

















 


Loan
Agreement and the Other Documents are and shall continue to be legal, valid and
binding obligations and agreements of Borrower enforceable in accordance with
their respective terms.


 


3.             Forbearance
Period.  During the period
commencing on the date hereof and ending on the earlier to occur of (a) August 31,
2010 or (b) the date of any Forbearance Default (as defined below) (the
“Forbearance Period”), Agent and Lenders will forbear from the exercise of
their rights and remedies under the Loan Agreement and the Other Documents
solely with respect to the Designated Defaults or as otherwise provided for in
this Forbearance Agreement.  Such
forbearance shall not derogate from Agent’s and Lenders’ rights to collect,
receive and/or apply proceeds of Collateral to the Obligations as may be
specifically provided for in the Loan Agreement.  As a result of the Designated Defaults and/or
any Forbearance Default, all Obligations shall be accelerated and declared due
and payable in full at the end of the Forbearance Period, without the need for
any demand or notice by Agent and notwithstanding any future compliance by
Borrower with any provisions of the Loan Agreement (including the provisions
giving rise to the Designated Defaults).


 


4.             Forbearance
Fee.  As consideration for
the agreements of Agent and Lenders set forth herein, Borrower agrees to pay to
Agent the following fee, which shall be an Obligation and shall be charged to
Borrower’s account (the “Forbearance Fee”), in addition to all other fees,
expenses, charges, commissions and interest chargeable by Agent and/or Lenders
to Borrower’s account under the Loan Agreement and the Other Documents:  a fee of $5,000 due and earned in full as of
the date of Borrower’s execution of this Forbearance Agreement.


 


5.             Amendments
to Loan Agreement.  The
Loan Agreement is hereby amended as follows:


 


(a)           The definition of
“Applicable Margin” appearing in Section 1.2 of the Loan Agreement is
amended and restated in its entirety to provide as follows:


 


“Applicable
Margin” shall mean for (i) Revolving Advances that are Eurodollar Rate
Loans, 4.00%, (ii) Revolving Advances that are Domestic Rate Loans, 3.00%,
(iii) Term Loans that are Eurodollar Rate Loans, 5.00%, (iv) Term
Loans that are Domestic Rate Loans, 4.00%.


 


(b)           The definition of “Maximum
Revolving Advance Amount” appearing in Section 1.2 of the Loan Agreement
is amended and restated in its entirety to provide as follows:


 


“Maximum
Revolving Advance Amount” shall mean $7,000,000.


 


(c)           Section 2.1(a)(i) of the Loan Agreement is amended
and restated in its entirety to provide as follows:


 


“up
to 85%, subject to the provisions of Section 2.1(b) hereof, of
Eligible Receivables, plus”.


 


(d)           Section 2.1(a)(ii) of
the Loan Agreement is amended by deleting the numeral “$7,000,000” appearing in
clause “(C)” thereof and replacing the deleted numeral with the numeral
“$4,500,000”.


 


(e)           Section 2.1(a) of
the Loan Agreement is amended by (1) deleting the word “minus” appearing
at the end of subparagraph “(ii)” thereof and replacing the deleted word with
the word “plus”, (2) inserting a new subsection “(ii)(A)” immediately 


 


 


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following
subparagraph “(ii)” thereof which shall read in its entirety “$250,000, minus”,
and (3) amending and restating the first sentence of the final paragraph
thereof to read in its entirety “The amount derived from the sum of (w) Sections
2.1(a)(y)(i), (ii) and (ii)(A) minus (z) Sections
2.1(a)(y)(iii), (iv) and (v) at any time and from time to time shall
be referred to as the “Formula Amount”.


 


6.             Borrower’s Representations and Warranties.  Borrower hereby represents and warrants as
follows:


 


(a)           this Forbearance
Agreement, the Loan Agreement and the Other Documents are and shall continue to
be legal, valid and binding obligations of Borrower and are enforceable against
Borrower in accordance with their respective terms;


 


(b)           with the exception
of the Designated Defaults, upon the effectiveness of this Forbearance
Agreement, Borrower hereby reaffirms all covenants, representations and
warranties made in the Loan Documents and the Other Documents and agrees that
all such covenants, representations and warranties shall be deemed to have been
remade and are true and correct in all material respects as of the effective
date of this Forbearance Agreement, except for such representations and
warranties which, by their terms, are only made as of a previous date;


 


(c)           Borrower has the
limited liability company power, and has been duly authorized by all requisite
limited liability company action, to execute and deliver this Forbearance
Agreement and to perform its obligations hereunder; and this Forbearance
Agreement has been duly executed and delivered by Borrower;


 


(d)           Borrower’s
execution, delivery and performance of this Forbearance Agreement does not and
will not (1) violate any law, rule, regulation or court order to which
Borrower is subject, (2) conflict with or result in a breach of Borrower’s
organizational documents or any agreement or instrument to which Borrower is a
party or by which it or its properties are bound, or (3) result in the
creation or imposition of any lien, security interest or encumbrance on any
property of Borrower, whether not owned or hereafter acquired, other than Liens
in favor of Agent;


 


(e)           Agent, for itself
and for the ratable benefit of Lenders, have and will continue to have a valid
first priority lien and security interest in all property in which Liens were
granted to Agent by Borrower or any third party as security for the Obligations
(the “Collateral”), and Borrower expressly reaffirms all Liens granted to Agent
pursuant to the Loan Agreement and the Other Documents.


 


(f)            the recitals set
forth in the “Background” paragraphs of this Forbearance Agreement are truthful
and accurate and are operative parts of this Forbearance Agreement.


 


(g)           no defaults or
events of default are in existence under the Loan Agreement and the Other
Documents other than the Designated Defaults.


 


(h)           Borrower has no
defense, counterclaim or offset with respect to the Loan Agreement, the Other
Documents, any Lien granted to Agent and/or the Obligations; and


 


(i)            the Loan Agreement
and the Other Documents are in full force and effect, and are hereby ratified
and confirmed.


 


 


 


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7.             Additional Covenants of Borrower.


 


(a)           Borrower shall
comply with all covenants (other than the covenants with respect to which the
Designated Defaults exist) and other obligations of Borrower under the Loan
Agreement and the Other Documents.


 


(b)           Except as
specifically permitted or allowed by the Loan Agreement, Borrower shall not,
directly or indirectly, make any payments, repayments or reimbursements,
whether in cash, in kind, securities or other property, to any guarantor,
affiliate, or any officer, director, shareholder, general partner, limited
partner or member of Borrower with respect to (1) any indebtedness of
Borrower to such person or entity, (2) any capital contributed by such
person to Borrower or (3) any indebtedness incurred by such person or
entity on behalf of or for the benefit of Borrower; provided, however, that the
foregoing shall not prevent the accrual, as opposed to the payment, of interest
on any such indebtedness owed by Borrower.


 


(c)           Notwithstanding
anything to the contrary set forth in Section 2.2 of the Loan Agreement,
Borrower shall not request Eurodollar Rate Loans, extend the duration of any
existing Eurodollar Rate Loans, or convert any Domestic Rate Loan into a
Eurodollar Rate Loan.


 


(d)           During the term of
this Forbearance Agreement, Borrower shall, on a monthly basis, (i) realize
cash receipts no less than ten percent (10%) below the cash receipts forecast
by Borrower in the “Version 8 Cash Flow Plan” submitted to Agent on February 8,
2010 (as such may be amended, modified and/or superseded from and after the
date of this Forbearance Agreement with Agent’s consent, the “2010 Business
Plan”), and (ii) make cash disbursements not more than ten percent (10%)
above the cash disbursements forecast by Borrower in the 2010 Business Plan.


 


(e)           Borrower shall
furnish to Agent a weekly report, based upon the 2010 Business Plan and
otherwise in form acceptable to Agent in its sole and absolute discretion, to
be provided not later than the second Business Day of each week, which sets
forth (1) an updated thirteen week cash flow projection whereby the first
week shall be deleted and updated with the week immediately succeeding the last
week included in the previous report, (2) a detailed reconciliation
analysis of the actual results as compared to the results projected in the 2010
Business Plan for the prior week, and (3) written explanation of all
material variances.


 


(f)            No later than February 19,
2010, Borrower shall engage, and at all times during the Forbearance Period
maintain the engagement of, a Chief Restructuring Officer, who shall be
acceptable to Agent in its sole and absolute discretion, on terms acceptable to
Agent in its sole and absolute discretion (such Chief Restructuring Officer, as
so retained, the “CRO”), for the purpose of, among other things, (1) analyzing
and reporting on the present and projected business operations and financial
condition of Borrower, and (2) assisting and advising Borrower in
developing and implementing the 2010 Business Plan, the Long-Term Business Plan
(as defined below), such other business plans as may be requested or required
by Agent, and any and all Transactions (as defined below).


 


 


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(g)           No later than February 26,
2010, Borrower shall engage, and at all times during the Forbearance Period
maintain the engagement of, an Investment Banker, who shall be acceptable to
Agent in its sole and absolute discretion, on terms acceptable to Agent in its
sole and absolute discretion (such Investment Banker, as so retained, the
“IB”), for the purpose of, among other things, advising and assisting Borrower
with respect to a transaction or transactions with third parties for the
recapitalization of Borrower, the refinancing of the Obligations and/or the sale
of substantially all of Borrower’s assets (a “Transaction”).


 


(h)           Borrower shall
provide, and hereby grants, Agent prompt and direct access to the work product
and personnel of the CRO and the IB, respectively, with respect to all matters
as to which each has been engaged by Borrower. 
In furtherance and not in limitation of the matters set forth in the
immediately preceding sentence and/or the matters set forth in the immediately
preceding two subparagraphs, Borrower shall cause the terms and conditions of
its respective retentions of the CRO and the IB to recognize and acknowledge
such rights of prompt and direct access. 
All information received as a result of such access shall be kept
confidential consistent with Agent’s present responsibilities arising from its
existing business relationship between the parties, but no confidentiality
agreements shall be otherwise required as a condition of such access.


 


(i)            In furtherance and
not in limitation of the matters set forth in the immediately preceding three
subparagraphs, (1) Borrower shall cause the CRO to deliver to Agent, no
later than March 3, 2010, a written initial assessment with respect to
Borrower’s present and projected business operations and financial condition,
and (2) Borrower shall cause the CRO and the IB, respectively, to provide
weekly status updates to Agent as to all matters for which each has been
engaged by Borrower.


 


(j)            No later than February 19,
2010, Borrower shall deliver to Agent a copy of a term sheet, letter of intent
or other similar document received by Borrower pursuant to which an entity with
sufficient operational experience and financial resources to consummate a
Transaction shall express interest in, or propose to Borrower, a Transaction.


 


(k)           No later than April 9,
2010, Borrower shall deliver to Agent a long term business plan which shall set
forth in detail, among other things, the financial and operational business
strategy of and for Borrower, including without limitation any and all
financing requirements necessary to the attainment and execution thereof (the
“Long-Term Business Plan”).


 


8.             Additional Covenants of Agent and/or Lenders.


 


(a)           Agent and Lenders
shall immediately release $350,000 of the availability reserves established
pursuant to Section 2.1(a) of the Loan Agreement, and shall release
an additional $100,000 of such availability reserves at such time as (i) the
CRO has endorsed the 2010 Business Plan and (ii) Borrower has resolved
and/or cured, as applicable, in a manner satisfactory to Agent, all disputes
and defaults under Borrower’s Lease Agreement with AGNL Coffman, L.L.C. dated March 30,
2007 and amended June 8, 2009.


 


 


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(b)           Notwithstanding
anything to the contrary set forth in Section 3.1 of the Loan Agreement,
Agent and Lenders shall not institute the Default Rate during the Forbearance
Period absent the occurrence of a Forbearance Default.


 


(c)           Notwithstanding
anything to the contrary set forth in Section 10.5(a) of the Loan
Agreement, Borrower’s failure to perform, keep or observe the covenants set
forth in Section 6.5 of the Loan Agreement shall not be an Event of
Default.


 


9.             Forbearance Defaults.  Each of the following shall constitute a
Forbearance Default, absent the prior approval or subsequent waiver by Agent:


 


(a)           the existence of any
Event of Default under the Loan Documents, other than a Designated Default or a
failure to keep or observe the covenants set forth in Section 6.5 of the
Loan Agreement;


 


(b)           the reoccurrence of
any Designated Default after the date hereof other than a Designated Default or
a failure to keep or observe the covenants set forth in Section 6.5 of the
Loan Agreement;


 


(c)           Borrower shall fail
to keep or perform any of the terms, obligations, covenants or agreements contained
in this Forbearance Agreement;


 


(d)           if any
representation or warranty of any Borrower in this Forbearance Agreement shall
be false, misleading or incorrect in any respect;


 


(e)           the occurrence of a
materially adverse change, as determined by Agent in its sole and absolute
discretion, in the aggregate value of the Collateral securing any of the
Obligations.


 


10.           Rights and Remedies.  Upon the occurrence of a Forbearance Default
all Obligations shall be immediately due and payable, and in addition Agent and
Lenders shall be immediately entitled to enforce all of their rights and
remedies under the Loan Agreement, the Other Documents and applicable law.


 


11.           Borrower’s Waivers.  Borrower waives and affirmatively agrees not
to allege or otherwise pursue any or all defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs or other rights that it may
have, as of the date hereof, to contest (a) any Defaults or Events of
Default which were or could have been declared by Agent and/or Lenders on the
date of this Forbearance Agreement, (b) any provision of the Loan
Agreement, the Other Documents or this Forbearance Agreement, (c) the
right of Agent and/or Lenders to all of the rents, issues, profits and proceeds
from the Collateral, (d) any matter acknowledged by Borrower in paragraph
“2” of this Forbearance Agreement, (e) the Liens of Agent and/or Lenders,
including without limitation the validity, extent, priority, perfection and
enforceability thereof, in any property, whether real or personal, tangible or
intangible, or any right or other interest, now or hereafter arising in
connection with the Collateral, or (f) the conduct of Agent and/or Lenders
in administering the lending arrangements by and among Borrower, Agent and
Lenders.


 


12.           Borrower’s Releases.  Borrower hereby releases, remises, acquits
and forever discharges Agent, Lenders and their respective employees, agents,
representatives, consultants, attorneys, fiduciaries, servants, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations, and related corporate divisions (all of the
foregoing hereinafter called the “Released Parties”), from any and all actions
and causes of action, 


 


 


6
















 


judgments,
executions, suits, debts, claims, demands, obligations, damages and expenses of
any and every character, known or unknown, direct and/or indirect, at law or in
equity, of whatsoever kind or nature, for or because of any matter or things
done, omitted or suffered to be done by any of the Released Parties prior to
and including the date of execution of this Forbearance Agreement, and in any
way directly or indirectly arising out of or in any way connected to this
Forbearance Agreement, the Loan Agreement and/or the Other Documents (all of
the foregoing hereinafter called the “Released Matters”).  Borrower acknowledges that the agreements in
this paragraph are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.


 


13.           Effect and Construction of
Forbearance Agreement. 
Except as expressly provided herein, the Loan Agreement and the Other
Documents shall remain in full force and effect in accordance with their
respective terms, and this Forbearance Agreement shall not be construed to:


 


(a)           impair the validity,
perfection or priority of any Lien securing the Obligations;


 


(b)           waive or impair any
rights, powers or remedies of Agent and/or Lenders under, or constitute a
waiver of, any provision of the Loan Agreement and/or the Other Documents upon
termination or expiration of the Forbearance Period with respect to the
Designated Defaults or otherwise; or


 


(c)           constitute an
agreement by or require Agent and/or Lenders to extend the Forbearance Period,
grant additional waivers, or extend the term of the Loan Agreement or the time
for payment of any of the Obligations.


 


14.           Presumptions.  Borrower acknowledges that it has consulted
with and advised by counsel and such other experts and advisors as it has
deemed necessary in connection with the negotiation, execution and delivery of
this Forbearance Agreement and has participated in the drafting hereof.  Therefore, this Forbearance Agreement shall
be construed without regard to any presumption or rule requiring that it
be construed against any one party causing this Agreement or any part hereof to
be drafted.


 


15.           Conditions of
Effectiveness.  This
Forbearance Agreement shall become effective upon satisfaction of the following
conditions precedent:


 


(a)           Agent shall have
received one (1) copy of this Forbearance Agreement executed by Borrower.


 


(b)           The Christopher John
Kliefoth Revocable Trust UA 07-10-2007 and Richard Horowitz shall have
purchased from Agent and/or Lenders and fully funded a junior participation
interest in the Revolving Advances, in aggregate principal amount of $250,000,
on terms and conditions acceptable to Agent in its sole and absolute discretion
but which shall include the use of such amount by Agent and Lenders to increase
the amounts otherwise available to Borrower under the Loan Agreement as
contemplated by paragraph 5(e) of this Forbearance Agreement.


 


16.           Expenses.  Borrower shall pay all costs, fees and
expenses of Agent and/or Lenders (including the reasonable costs, fees and
expenses of Agent’s in-house and outside counsel, consultants and appraisers)
incurred by Agent and/or Lenders (a) in connection with the negotiation,
preparation and closing of this Forbearance Agreement, and (b) from and
after the 


 


 


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date
of this Forbearance Agreement in connection with the administration and
enforcement of this Forbearance Agreement. 
All of the foregoing costs, fees and expenses shall be Obligations and
shall be charged by Agent and/or Lenders to Borrower’s account, and shall be in
addition to, and not in replacement or supersession of, the fees, costs,
charges and expenses authorized under the Loan Agreement and the Other
Documents as of the date of this Forbearance Agreement.


 


17.           Entire Agreement.  This Forbearance Agreement sets forth the
entire agreement among the parties hereto with respect to the subject matter
hereof.  Borrower has not relied on any
agreements, representations, or warranties of Agent and/or Lenders, except as
specifically set forth herein.  Any
promises, representations, warranties or guarantees not herein contained and
hereinafter made shall have no force and effect unless in writing, signed by
each party hereto.  Borrower acknowledges
that it is not relying upon oral representations or statements inconsistent
with the terms and provisions of this Forbearance Agreement.


 


18.           Further Assurance.  Borrower shall execute such other and further
documents and instruments as Agent may reasonably request to implement the
provisions of this Forbearance Agreement and to perfect and protect the Liens
created by or agreed upon in the Loan Agreement and the Other Documents.


 


19.           Benefit of Agreement.  This Forbearance Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and
their respective permitted successors and assigns.  No other person or entity shall be entitled
to claim any right or benefit hereunder, including, without limitation, to
claim status as a third-party beneficiary of this Forbearance Agreement.  Agent’s and/or Lenders’ agreement to forbear
with respect to the Designated Defaults subject to the terms and conditions of
this Forbearance Agreement and to refrain from enforcing certain of its
remedies does not in any manner limit Borrower’s obligations to comply with,
and Agent’s and Lenders’ rights to insist upon compliance with, each and every
one of the terms of this Forbearance Agreement, the Loan Agreement and the
Other Documents except as specifically modified herein.


 


20.           Severability.  The provisions of this Forbearance Agreement
are intended to be severable.  If any
provisions of this Forbearance Agreement shall be held invalid or unenforceable
in whole or in part in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or enforceability
without in any manner affecting the validity or enforceability of such
provision in any other jurisdiction or the remaining provisions of this
Forbearance Agreement in any jurisdiction.


 


21.           Governing Law,
Jurisdiction, Venue.  This
Forbearance Agreement shall be governed by and construed in accordance with the
laws of the State of New York applied to contracts to be performed wholly
within the State of New York.  Any
judicial proceeding brought by or against any Borrower with respect to this
Forbearance Agreement or any related agreement may be brought in any court of
competent jurisdiction in the State of New York, County of New York, and, by
execution and delivery of this Forbearance Agreement, Borrower accepts for
itself and in connection with its properties, generally and unconditionally,
the non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this
Forbearance Agreement.  Nothing herein
shall affect the right to serve process in any manner permitted by law or shall
limit the right of Agent and/or Lenders to bring proceedings against Borrower
in the courts of any other jurisdiction. 
Borrower waives any objection to jurisdiction and venue of any action
instituted hereunder and 


 


 


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shall
not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. 
Any judicial proceeding by Borrower against Agent and/or Lenders
involving, directly or indirectly, any matter or claim in any way arising out
of, related to or connected with this Forbearance Agreement or any related
agreement, shall be brought only in a federal or state court located in the
State of New York, County of New York.


 


22.           Waiver of Jury Trial.  EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (A) ARISING UNDER THIS FORBEARANCE AGREEMENT, THE LOAN DOCUMENTS OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS FORBEARANCE
AGREEMENT, THE LOAN AGREEMENT, THE OTHER DOCUMENTS OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY
HEREBY CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS FORBEARANCE
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 
IN ADDITION, EACH BORROWER WAIVES THE RIGHT TO CLAIM OR RECOVER IN ANY
SUCH SUIT, ACTION OR PROCEEDING ANY DAMAGES OTHER THAN OR IN ADDITION TO ACTUAL
DAMAGES.


 


23.           Counterparts; Telecopied
Signatures.  This
Forbearance Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which taken together shall
constitute one and the same agreement. 
Any signature delivered by a party by facsimile, PDF, e-mail or other
electronic method of transmission shall be deemed to be an original signature
hereto.


 


24.           Survival.  All representations, warranties, covenants,
agreements, undertakings, waivers and releases of Borrower contained herein
shall survive the termination of the Forbearance Period and payment in full of
the Obligations under the Loan Agreement and the Other Documents.


 


25.           Amendment.  No amendment, modification, rescission,
waiver or release of any provision of this Forbearance Agreement shall be
effective unless the same shall be in writing and signed by Borrower, Agent and
Lenders.  This Forbearance Agreement
shall constitute an Other Document.


 


 


 


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26.           Headings.  Section headings in this Forbearance
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Forbearance Agreement for any other purpose.


 


IN WITNESS WHEREOF, this Forbearance Agreement
has been duly executed as of the day and year first written above.


 


	
   

  	
  WM COFFMAN LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph A. Molino, Jr.

  
	
   

  	
  Name: Joseph A. Molino, Jr.

  	
   

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PNC BANK, NATIONAL ASSOCIATION, as Agent and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan Shia

  
	
   

  	
  Name: Bryan Shia 

  	
   

  
	
   

  	
  Title: Vice President

  
				



 


[ Schedule of Designated Defaults follows ]


 


 


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Schedule of Designated Defaults


 


	
  (a)

  	
  Borrower’s
  failure to comply with Section 6.5(a) of the Loan Agreement (Fixed
  Charge Coverage Ratio) for the one quarter period ending as of
  September 30, 2009 and for the two quarter period ending as of
  December 31, 2009.

  
	
   

  	
   

  
	
  (b)

  	
  Borrower’s
  failure to comply with Section6.5(b) of the Loan Agreement (Minimum
  EBITDA) for the months ending July 31, 2009, August 31, 2009,
  September 30, 2009, October 31, 2009, November 30, 2009 and
  December 31, 2009.

  



 


 


 


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