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Ninth Waiver, Amendment And Forbearance Agreement

This is an actual contract by ACT Teleconferencing.

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Sectors: Telecommunications
Governing Law: Colorado , View Colorado State Laws
Effective Date: November 12, 2004
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Exhibit 10.2


NINTH WAIVER, AMENDMENT AND FORBEARANCE AGREEMENT


This Ninth Waiver, Amendment and Forbearance Agreement ("Amendment") is effective as of November 12, 2004 and relates to the Note Agreement dated as of May 12, 2003 (the "Note 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") and certain subsidiaries of Holdings, as amended. 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, subject to the terms and conditions set forth in this Amendment, and the Purchaser has agreed to such forbearance, amendments and waivers, on the terms and conditions set forth herein. In addition, Holdings is changing its principal bank relationship from Vectra Bank Colorado, National Association to Silicon Valley Bank which necessitates certain amendments to the Note Agreement.


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) Clause (b) of Section 6.7 of the Note Agreement (Indebtedness) is amended and restated to read as follows:


"(b) the Bank Indebtedness, provided that the total amount of such Bank Indebtedness does not exceed $3.0 million (as reduced by the amount of all principal payments on any term loan portion of the Bank Indebtedness and the amount of all commitment reductions on any revolving loan portion of the Bank Indebtedness)"


(b) Section 7.1 of the Note Agreement (Events of Default) is amended to delete the following sentence, which was added in the Eighth Waiver, Amendment and Forebearance Agreement to the Note Agreement dated August 16, 2004 (the "Eighth Amendment"):


"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."


Purchasers hereby waive any Event of Default relating to Holdings' failure to repay all indebtedness owed to Vectra Bank, Colorado National Association on October 30, 2004.


(c) The definition of "Bank" in the Definitions Schedule to the Note Agreement is hereby amended and restated to read:


"Bank," as of November 15, 2004, means Silicon Valley Bank.


(d) The definition of "Bank Indebtedness" in the Definitions Schedule to the Note Agreement is hereby amended and restated to read:


"Bank Agreement" means the Loan and Security Agreement between the Company and the Bank dated on or about November 15, 2004.


(e) The definition of "Bank Indebtedness" in the Definitions Schedule to the Note Agreement is hereby amended and restated to read:


"Bank Indebtedness" shall mean all Indebtedness to the Bank incurred in connection with the Bank Agreement, so long as the total principal amount of Indebtedness owed to the Bank does not exceed $3.0 million (as reduced by the amount of all principal payments on any term loan portion of the Bank Indebtedness and the amount of all commitment reductions on any revolving loan portion of the Bank Indebtedness).


(f) The definition of "Intercreditor Agreement" in the Definitions Schedule to the Note Agreement is hereby amended and restated to read:


"Intercreditor Agreement" means the Intercreditor Agreement, dated as of November 15, 2004, among the Bank and the Purchaser, setting forth the rights and obligations of the parties as to payments upon the Bank Indebtedness and the Note.


(g) The Purchasers hereby waive any Event of Default relating to Holdings' failure to raise $2.5 million in equity financing by September 30, 2004.


2. Forbearance . The Specified Defaults attached as Exhibit A to the Eighth Amendment are hereby amended to add the failure to engage an investment banker as required by Section 3(a) of the Eighth Amendment by September 30, 2004. The Purchaser hereby confirms that, so long as Holdings and Services comply with all terms and conditions of the Note Agreement, as amended by this Amendment (other than the Specified Defaults set forth in Exhibit A to the Eighth Amendment, as amended by this Amendment), the Purchaser agrees to forbear, until December 31, 2004, from (i) accelerating or demanding immediate
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