Exhibit
10.2


 


AMENDMENT TO
FORBEARANCE AGREEMENT


 


This AMENDMENT TO FORBEARANCE AGREEMENT (this “Agreement”) is
entered into as of May 27, 2009, by and among AMERICAN DEFENSE SYSTEMS,
INC., a Delaware corporation, A. J. PISCITELLI & ASSOCIATES, INC., a
New York corporation, AMERICAN PHYSICAL SECURITY GROUP, LLC, a Delaware limited
liability company (the “Borrowers”) and TD BANK, N.A., a national
banking association, and successor by merger to COMMERCE BANK, N.A (the “Lender”).


 


RECITALS


 


The Borrowers and the Lender are parties to the Forbearance Agreement
and Amendment to Loan Agreement, dated as of April 27, 2009 (the “Forbearance
Agreement”). Terms defined in the Forbearance Agreement shall have the same
defined meanings when such terms are used herein. The Borrowers have requested
that the Lender agree to increase the Revolving Credit Cap. The Lender has
agreed to do so, subject to the terms of this Amendment. Accordingly, for
valuable consideration, the receipt and sufficiency of which are acknowledged, the
Lender and the Borrowers agree as follows:


 


1.             The
Revolving Credit Cap is hereby increased to $2,500,000.


 


2.             Except
as specifically amended hereby, all terms, conditions, covenants,
representations and warranties contained in the Forbearance Agreement and the
Loan Documents, and all rights of the Lender and all of the obligations under
the Forbearance Agreement and the Loan Documents, shall remain in full force
and effect. Each of the Borrowers hereby confirms that the Forbearance
Agreement and the Loan Documents are in full force and effect, and that no
Borrower has any right of setoff, recoupment or other offset or any defense,
claim or counterclaim with respect to the Forbearance Agreement or any Loan
Document or the Borrowers’ obligations thereunder.


 


3.             The
execution, delivery and effectiveness of this Amendment shall not directly or
indirectly: (i) create any obligation to make any further Loans or to
continue to defer any enforcement action after the occurrence of any Default or
Event of Default (including, without limitation, any Forbearance Default); (ii) constitute
a consent or waiver of any past, present or future violations of any provisions
of the Forbearance Agreement and the Loan Documents; (iii) amend, modify
or operate as a waiver of any provision of the Forbearance Agreement or any
Loan Document or any right, power or remedy of the Lender except as expressly
set forth herein; or (iv) constitute a course of dealing or other basis
for altering any obligations under the Forbearance Agreement and the Loan
Documents or any other contract
or instrument. Except as expressly set forth herein, the Lender reserves all of
its rights, powers, and remedies under the Forbearance Agreement Loan Documents
and applicable law. All of the provisions of the Forbearance Agreement and the
Loan Documents, including, 


 

















 


without limitation, the time of the essence
provisions, are hereby reiterated, and if ever waived previously, are hereby
reinstated.


 


4.             In addition to, and not in lieu of, the terms of the
Loan Documents relating to the reimbursement of the Lender fees and expenses,
the Borrowers shall reimburse the Lender promptly on demand for all fees,
costs, charges and expenses, including the fees, costs and expenses of counsel
and other expenses (including all fees and expenses of Hunton &
Williams LLP), incurred in connection with this Amendment.


 


IN WITNESS
WHEREOF, this Amendment to Forbearance Agreement has been
executed by the parties hereto as of the date first written above.


 


	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  AMERICAN DEFENSE SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Anthony Piscitelli

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  A.J. PISCITELLI & ASSOCIATES, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Anthony Piscitelli

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  AMERICAN PHYSICAL SECURITY GROUP, LLC

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Anthony Piscitelli

  
	
   

  	
   

  	
  President

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  T.D. BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Frank Merendino

  
	
   

  	
   

  	
  Vice President