SECOND AMENDMENT TO FORBEARANCE AGREEMENT
SECOND AMENDMENT TO
FORBEARANCE AGREEMENT
SECOND
AMENDMENT TO FORBEARANCE AGREEMENT, dated as of March 8, 2010 (the “Amendment”), with
respect to the Term Loan and Security Agreement dated as of November 19, 2008 by
and among CAPITAL GROWTH SYSTEMS, INC., d/b/a Global Capacity, a Florida
corporation (“Parent”), GLOBAL
CAPACITY GROUP, INC., a Texas corporation (“GCG”), CENTREPATH,
INC., a Delaware corporation (“Centrepath”), 20/20
TECHNOLOGIES, INC., a Delaware corporation (“20/20 Inc.”), 20/20
TECHNOLOGIES I, LLC, a Delaware limited liability company (“20/20 LLC”), NEXVU
TECHNOLOGIES, LLC, a Delaware limited liability company (“Nexvu”), CAPITAL
GROWTH ACQUISITION, INC., a Delaware corporation (“CG Acquisition”), FNS
2007, INC., a Delaware corporation (“FNS”), GLOBAL
CAPACITY DIRECT, LLC f/k/a VANCO DIRECT USA, LLC, a Delaware limited liability
company (“GCD”), and MAGENTA
NETLOGIC LIMITED, a company incorporated under the laws of England and Wales
(“Magenta”;
Parent, GCG, Centrepath, 20/20 Inc., 20/20 LLC, Nexvu, CG Acquisition, FNS, GCD
and Magenta each referred to herein individually as a “Borrower” and
collectively as the “Borrowers”), ACF CGS, L.L.C., a Delaware limited liability company,
as administrative agent (the “Agent”), and the lenders party thereto from
time to time (as amended, modified and/or restated from time to time,
the “Loan
Agreement”; all
capitalized terms used and not otherwise defined herein shall have their
respective meanings as set forth in the Loan Agreement).
WHEREAS,
certain Defaults have occurred and continue to exist under the Loan Agreement,
and in connection therewith, the Borrowers, the Agent and the Required Lenders
entered into that certain Forbearance Agreement dated as of December 22, 2009 as
amended by that certain First Amendment to Forbearance Agreement dated as of
December 31, 2009 (collectively, the “Forbearance
Agreement”) pursuant to which the Agent and the Lenders have agreed,
subject to the terms and conditions thereof, to forbear from exercising certain
rights and remedies arising as a result of the occurrence of the Specified
Defaults (as defined in the Forbearance Agreement); and
WHEREAS, the Borrowers have requested
that the Agent and the Lenders continue to forbear from exercising rights and
remedies as a result of the occurrence of the Specified Defaults, and amend
certain terms of the Forbearance Agreement.
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. Existing
Definitions. All capitalized terms used and not otherwise
defined herein shall have their respective meanings as set forth in the
Forbearance Agreement.
2. Continued Existence of
Specified Defaults. The Borrowers acknowledge and agree that (i) the
Specified Defaults have occurred continue to exist as of the date hereof, and
(ii) except as expressly contemplated by the Forbearance Agreement, the Agent
and the Lenders have not waived any rights or remedies, and may, if they so
elect, exercise their respective rights and remedies in respect of the Specified
Defaults.
3. Amendments.
(a) The
first paragraph of the Forbearance Agreement is hereby amended by deleting such
paragraph in its entirety and substituting therefor the following:
“WHEREAS,
one or more Defaults exist under Section 13 of the
Loan Agreement as a result of the (i) Borrowers’ noncompliance with the
covenants set forth in (v) Section 7(k) of the
Loan Agreement (Bank Accounts), (w) Item 19(a) of the
Addendum to the Loan Agreement (Minimum EBITDA) for the testing period
ended October 31, 2009, (x) Item 19(b) of the
Addendum to the Loan Agreement (Monthly Recurring Circuit Revenue) for
the testing period ending January 31, 2010, (y) Item 19(d) of the
Addendum to the Loan Agreement (Minimum Cash Balance) according to
Borrowers’ reports to Agent dated February 10, 2010 and February 24, 2010
showing a Cash Balance of less than the required $1,500,000 and
(z) Item
19(e) of the Addendum to the Loan Agreement (Vendor Disbursements) for
the testing periods ending November 6, 2009, November 13, 2009, November, 20,
2009, November 27, 2009, December 4, 2009, December 11, 2009, and December 18,
2009; (ii) the existence of events of default under the Debenture Documents; and
(iii) the failure of Parent to deliver a landlord waiver in form and substance
reasonably satisfactory to Agent for the Borrowers’ office space located at 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx as required under Section 9(i)(iii)(b)
(collectively, the “Specified
Defaults”).”
(b) Section
1(b) of the Forbearance
Agreement is hereby amended by deleting clause (5) in such section in its
entirety and substituting therefor the following:
“(5) 12:01 A.M. (New York
time) on March 19, 2010.”
(c) Section 2(j) of the
Forbearance Agreement is hereby amended by deleting such section in its entirety
and replacing it with the following:
“(j) The
Borrowers agree that no later than one (1) Business Day prior to the date the “Initial Closing” is
scheduled to occur under that certain Asset Purchase Agreement dated on or about
December 30, 2009 (the “GTT Purchase
Agreement”), by and among
Parent, GCG, GCD, and Global Telecom & Technology Americas, Inc.
(“GTT”), the Borrowers shall provide Agent
with the Strict Joint Order Escrow Trust Agreement executed by the parties
pursuant to the GTT Purchase Agreement (the “Escrow
Agreement”) and all related
flow of funds, reconciliations, and other documents and agreements evidencing
the calculation of or adjustments to the purchase price payable under the GTT
Purchase Agreement (including, all “Required Deliveries” under the Escrow
Agreement), which Escrow Agreement shall demonstrate (to the satisfaction of the
Agent), that the closing of the transactions contemplated by the GTT Purchase
Agreement shall yield net proceeds to the Borrowers of not less than $4,000,000,
which amount is designated pursuant to the Escrow Agreement to be paid directly
to Agent for application to the outstanding Obligations. The
Borrowers further agree that on the date the “Initial Closing” shall
occur under the GTT Purchase Agreement, the Borrowers shall make a
mandatory pay down of the Term Loan in an amount not less than
$4,000,000.”
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(d) Section 2 of the
Forbearance Agreement is hereby amended by the addition of the following new
subsection (k):
“(k) The Borrowers agree that during
the Forbearance Period the minimum Cash Balance required pursuant to Item 19(d) of the
Addendum to the Loan Agreement shall be $1,000,000 at all
times. Upon termination of the Forbearance Period the minimum Cash
Balance required pursuant to Item 19(d) of the
Addendum to the Loan Agreement shall return to $1,500,000 at all
times.”
4. Conditions
Precedent.
This
Amendment shall become effective on the date (the “Effective Date”) upon
which the following conditions have been satisfied in full or waived by the
Agent in writing:
(a) The
Agent shall have received an executed counterpart of this
Amendment duly executed by the Borrowers, the Agent and each of the
Required Lenders;
(b) All
representations and warranties contained in this Amendment or
otherwise made in writing to the Agent in connection herewith shall be true and
correct;
(c) As
of the date all other conditions in this Section 3 are
satisfied, no Default (other than the Specified Defaults) shall have occurred
and be continuing;
(d) The
Borrowers shall have obtained all necessary equity holder and board approvals
and consents;
(e) All
legal matters in connection with this Amendment shall be satisfactory
to the Agent; and
(f) Borrowers
shall have paid in full the Default Interest Payment Amount.
5. Representations and
Warranties. After giving effect to this Amendment, each of the
Borrowers, jointly and severally, reaffirm and restate the representations and
warranties set forth in Section 4 of the Loan
Agreement and in the other Loan Documents (except to the extent such
representations and warranties (i) expressly relate to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date, and (ii) are untrue as a result of
the occurrence or continuance of any of the Specified Defaults) and all such
representations and warranties shall be true and correct on the date hereof with
the same force and effect as if made on such date. Each of the
Borrowers represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Agent and the Lenders
that:
(b) It
has the power and authority to execute, deliver and carry out the terms and
provisions of this Amendment and the transactions contemplated hereby and has
taken or caused to be taken all necessary action to authorize the execution,
delivery and performance of this Amendment and the transactions contemplated
hereby;
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(c) No
consent of any Person (including, without limitation, any of its equity holders
or creditors), and no action of, or filing with, any governmental or public body
or authority is required to authorize, or is otherwise required in connection
with, the execution, delivery and performance of this Amendment;
(d) This
Amendment has been duly executed and delivered on its behalf by a duly
authorized officer, and constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, subject to bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the enforcement of
creditors’ rights generally and the exercise of judicial discretion in
accordance with general principles of equity; and
(e) The
execution, delivery and performance of this Amendment will not violate any law,
statute or regulation, or any order or decree of any court or governmental
instrumentality, or conflict with, or result in the breach of, or constitute a
default under, any contractual obligation of any Borrower.
6. Acknowledgment of
Liens. Each of the Borrowers hereby ratifies and confirms the
grant of the security interest in and the Liens on its Collateral contained in
the Loan Documents to which it is a party which were granted pursuant to the
Loan Documents or otherwise.
7. Ratification; Waiver of
Defenses; and Release.
(a) Except
as herein agreed, the Loan Agreement and the other Loan Documents remain in full
force and effect and are hereby ratified and affirmed by the
Borrowers. Each of the Borrowers hereby (i) confirms and agrees that
the Borrowers are truly and justly indebted to the Agent and the Lenders in
respect of the Obligations without defense, counterclaim or offset of any kind
whatsoever; and (ii) reaffirms and admits the validity and enforceability of the
Loan Agreement and the other Loan Documents.
(b) Each
of the Borrowers, on its own behalf and on behalf of its successors and assigns,
hereby waives, releases and discharges the Agent and each Lender and all of the
affiliates of the Agent and each Lender, and all of the directors, officers,
employees, attorneys, agents, successors and assigns of the Agent, each Lender
and such affiliates, from any and all claims, demands, actions or causes of
action (known and unknown) arising out of or in any way relating to any of the
Loan Documents or any documents, agreements, dealings or other matters connected
with any of the Loan Documents, in each case to the extent arising (x) on or
prior to the date hereof or (y) out of, or relating to, any actions, dealings or
matters occurring on or prior to the date hereof. The waivers,
releases, and discharges in this Section 6 shall be
effective on the Effective Date regardless of whether any post-Effective Date
conditions to this Amendment are satisfied and regardless of any other event
that may occur or not occur after the date hereof.
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(c) This Amendment shall be limited
precisely as written and, except as expressly provided herein, shall not be
deemed (i) to be a consent granted pursuant to, or a waiver, modification or
forbearance of, any term or condition of the Loan Agreement, the other Loan
Documents or any of the instruments or agreements referred to therein or a
waiver of any Default (including, without limitation, the Specified Defaults),
whether or not known to the Agent or any of the Lenders, or (ii) to prejudice
any right or remedy which the Agent or any of the Lenders may now have or have
in the future under or in connection with the Loan Agreement, the other Loan
Documents or any of the instruments or agreements referred to
therein. Subject to the forbearance in respect of the Specified
Defaults set forth in Section
1(b) above, the Loan
Agreement, the other Loan Documents and each of the other Loan Documents shall
continue in full force and effect and are hereby ratified and
confirmed.
(d) Parent
and Borrowers expressly acknowledge the occurrence and continued existence of
the Specified Defaults. Parent and Borrowers agree that Agent and
Lenders have no obligation (i) to grant the forbearance contemplated by this
Amendment, (ii) to enter into discussions with Parent and Borrowers with regard
to waiving the Specified Defaults and/or modifying the financial covenants set
forth in the Loan Agreement, or (iii) to enter into any amendment or
modification of the terms and provisions of the Loan Agreement or the other Loan
Documents, and any of the same shall be within the sole discretion of the Agent
and the Lenders. Parent and Borrowers expressly acknowledge and
agree, as a condition of Agent and Lenders entering into this Amendment, that
they shall not raise any claim, cause of action or defense based upon any
allegations of failure of Agent and Lenders to do or agree to do any of the
foregoing, or failure of Agent or Lenders to negotiate in good faith to
accomplish any of the same.
8. References. All
references to the “Loan Agreement”, “thereunder”, “thereof” or words of like
import in the Loan Agreement or any other Loan Document and the other documents
and instruments delivered pursuant to or in connection therewith shall mean and
be a reference to the Loan Agreement and as each may in the future be amended,
restated, supplemented or modified from time to time.
9. Counterparts. This
Amendment may be executed by the parties hereto individually or in combination,
in one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier or electronic
transmission (in pdf format) shall be effective as delivery of a manually
executed counterpart of this Amendment.
10. Successors and
Assigns. The provisions of this Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
11. Severability. If
any provision of this Amendment 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 Amendment in any
jurisdiction.
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12. Governing
Law. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
13. Miscellaneous. The
parties hereto shall, at any time from time to time following the execution of
this Amendment, execute and deliver all such further instruments and take all
such further action as may be reasonably necessary or appropriate in order to
carry out the provisions of this Amendment.
14. Headings. Section
headings in this Amendment are included for convenience of reference only and
are not to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
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remainder of this page left blank intentionally]
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IN
WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
| BORROWERS: | |||
| CAPITAL GROWTH SYSTEMS, INC. | |||
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By:
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| Name: | |||
| Title: | |||
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GLOBAL
CAPACITY GROUP, INC.
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By:
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| Name: | |||
| Title: | |||
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CENTREPATH,
INC.
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By:
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| Name: | |||
| Title: | |||
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20/20
TECHNOLOGIES, INC.
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By:
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| Name: | |||
| Title: | |||
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NEXVU
TECHNOLOGIES, LLC
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By:
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| Name: | |||
| Title: | |||
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CAPITAL
GROWTH ACQUISITION, INC.
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By:
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| Name: | |||
| Title: | |||
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FNS
2007, INC.
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By:
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| Name: | |||
| Title: | |||
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GLOBAL
CAPACITY DIRECT, LLC f/k/a VANCO DIRECT USA,
LLC
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By:
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| Name: | |||
| Title: | |||
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MAGENTA
NETLOGIC LIMITED
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By:
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| Name: | |||
| Title: | |||
| AGENT and REQUIRED LENDER: | |||
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ACF CGS,
L.L.C.
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By:
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| Name: | |||
| Title: | |||
