Looking for an agreement? Search from over 1 million agreements now.
Home > Waiver Agreements/Waivers > Agreement Preview

Eighth Waiver, Amendment And Forbearance Agreement

This is an actual contract by ACT Teleconferencing.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.10.2

EIGHTH WAIVER, AMENDMENT AND FORBEARANCE AGREEMENT

This Eighth Waiver, Amendment and Forbearance Agreement (" Waiver" ) is effective as of August 16, 2004 and relates to the Warrant Agreement dated as of May 12, 2003 (the Warrant Agreement" ) among NewWest Mezzanine Fund, LP (" NewWest" ), KCEP Ventures II, L.P. (" KCEP" ), Convergent Capital Partners I, L.P. (" Convergent" ), James F. Seifert Management Trust dated October 8, 1992 (the " Trust" ) (collectively, the " Purchaser" ) and ACT Teleconferencing, Inc. (" Holdings" ), as amended and the Note Agreement dated as of May 12, 2003 among NewWest, KCEP, Convergent, the Trust, Holdings and certain subsidiaries of Holdings (the " Note Agreement" ). Other capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Note Agreement.

Recitals Holdings has requested that the Purchaser forbear in connection with certain current Events of Default under the Note Agreement and agree to certain amendments and waivers under the Warrant Agreement, subject to the terms and conditions set forth in this Waiver, and the Purchaser has agreed to such forbearance, amendments and waivers, on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter stated, the parties hereby agree as follows:

1. Waivers and Amendments .

(a) Subject to the conditions set forth in this Waiver, the Purchaser hereby waives (i) the requirement set forth in section 6 of the Warrant Agreement that Holdings shall not, without shareholder approval, issue shares of Holdings' common stock, no par value, for maximum proceeds of $3,500,000 and warrants to acquire shares of Holdings common stock, no par value, to certain investors pursuant to the resolution of the Board of Directors of Holdings dated August 10, 2004; and (ii) the right under section 15 of the Warrant Agreement to purchase a portion of the securities referred to in clause (i) above. (b) The Purchaser and Holdings agree that Gavin Thomson shall no longer be considered a " Principal" as defined in the Warrant Agreement.

(c) Item 2 of the Financial Covenants Schedule (Debt Service Coverage Ratio) is amended to add the following sentence:

" Notwithstanding the foregoing, for the calendar quarter ending September 30, 2004, Holdings shall not permit its Debt Service Coverage Ratio, as determined on a rolling four (4) calendar quarter basis, to be less than 0.90:1."

(d) Section 6.3(a) of the Note Agreement is hereby amended to add the following sentence:

" Notwithstanding the foregoing, during the period from August 16, 2004 until December 31, 2004, Holdings, Borrower and their Subsidiaries shall not be required to promptly pay and discharge (i) all trade accounts payable in accordance with customary business terms (so

long as accounts payable do not age significantly beyond aging as of August 16, 2004), (ii) Belgian VAT taxes for 2000 through 2004, and (iv) Texas sales and use taxes for 1998 through 2002."

(e) Section 6.10 of the Note Agreement, relating to Capital Expenditures, is amended to add the following:

" Notwithstanding the foregoing, during the period from January 1, 2004 to December 31, 2004, Holdings and Borrower may incur Capital Expenditures of up to $1,650,000, provided that any such Capital Expenditures after August 16, 2004 are (i) set forth in a business plan provided to Purchaser and Holdings' Board of Directors and (ii) approved by Holdings' Board of Directors."

(f) Section 7.1 of the Note Agreement (Events of Default) is amended to add the following:

" Notwithstanding the foregoing, if the Bank does not extend the October 30, 2004 maturity date of the Bank Indebtedness, then Holdings' failure to repay all outstanding Bank Indebtedness on October 30, 2004 (and any default under any other Indebtedness caused by such failure to repay all outstanding Bank Indebtedness on October 30, 2004) shall not be deemed to be an Event of Default until the earlier of (i) the date the Bank or any other person commences any enforcement action under the Bank Agreement or otherwise, or (ii) December 31, 2004."

(g) The Pledged Shares schedule attached to the Pledge Agreement is hereby amended to reduce the percentage of shares of ACT Business Solutions Ltd. pledged by Holdings (the Pledgor) from 65% to 60%.

(h) Section 14.2 of the Warrant Agreement is amended to add the following:

" Notwithstanding the foregoing, if, on or after August 16,2004, the addition of one or more representatives of the Institutional Holders pursuant to this Section 14.2 causes the Boards of Directors of the Company or Services to include more than seven members, then solely in order to add such representatives of the Institutional Holders, the Boards of Directors of the Company or Services may temporarily be expanded to include up to nine members." (i) If Borrower is in full compliance with all provisions of the Note Agreement and this Amendment as of December 31, 2004 (and provided that no Event of Default, other than the Specified Defaults as defined below, shall have occurred and all such Specified Defaults shall have been cured, to the extent curable), then all Specif
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |