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Forbearance Agreement

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EXHIBIT 10.53


FORBEARANCE AGREEMENT AND THIRD AMENDMENT TO LOAN INSTRUMENTS


This FORBEARANCE AGREEMENT AND THIRD AMENDMENT TO LOAN INSTRUMENTS (this "AGREEMENT"), dated as of June 7, 2001, is between AQUIS WIRELESS COMMUNICATIONS, INC., a Delaware corporation ("Borrower"), and FINOVA CAPITAL CORPORATION, a Delaware corporation ("FINOVA"), in its individual capacity and as agent for all Lenders (this and all other capitalized terms used but not elsewhere defined herein are defined in Section 2 below).


RECITALS


A. Borrower and FINOVA entered into an Amended and Restated Loan Agreement dated as of January 31, 2000 (the "Original Loan Agreement"), as amended by a First Amendment to Loan Instruments dated as of April 12, 2000 (the "First Amendment") between Borrower and FINOVA and as further amended by a Second Amendment to Loan Instrument dated as of September 27, 2000 between Borrower and FINOVA, pursuant and subject to the terms and conditions of which Lenders agreed to make loans and other financial accommodations to Borrower. The Original Loan Agreement, as amended by the First Amendment and the Second Amendment, is referred to herein as the "Loan Agreement."


B. Certain Events of Default, each as described on Exhibit A attached hereto (the "Subject Defaults"), have occurred under the Loan Agreement. As a result of the Subject Defaults, FINOVA is entitled to accelerate Borrower's Obligations and to exercise all rights and remedies available to FINOVA to collect Borrower's Obligations.


C. Borrower has requested that FINOVA forbear from accelerating Borrower's Obligations and exercising its rights and remedies to collect Borrower's Obligations on account of the Subject Defaults.


D. FINOVA is willing to forbear on the terms and conditions and for the period of time set forth herein.


NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, Borrower and FINOVA agree as follows:


1. Incorporation of Recitals. The Recitals set forth above are incorporated herein, are acknowledged by Borrower, Agent and Lenders to be true and correct and by this reference are made a part hereof.


2. Definitions. All capitalized terms used but not elsewhere defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement, as amended by this Agreement.


3. Statement of Account. Borrower and FINOVA acknowledge and agree that as of June 1, 2001:


(a) The Principal Balance was $26,249,355.00;


(b) the aggregate amount of all accrued and unpaid interest on the Principal Balance then due and payable was $1,322,358.52;


(c) the aggregate amount of all accrued and unpaid fees under Section 2.7 of the Loan Agreement was $1,000,000, consisting of (i) $250,000 then due and payable and $750,000 due and payable on the Maturity Date (as defined in the Loan Agreement);


(d) the aggregate amount of all accrued and unpaid late charges then due and payable pursuant to Section 2.6 of the Loan Agreement was $31,440.51; and


(e) the aggregate amount of all attorneys' fees and expenses incurred by FINOVA in connection with the Loan Agreement and the other Loan Instruments and not previously paid by Borrower to FINOVA pursuant to Section 11.1 of the Loan Agreement was $9,834.72.


Borrower and FINOVA agree that for all purposes under the Loan Agreement and the other Loan Instruments that from and after June 1, 2001 the amounts set forth in the preceding clauses (b), (c), (d) and (e) shall be deemed to have been added to the Principal Balance as of June 7, 2001.


4. Amendments to Loan Instruments. The Loan Instruments are amended as set forth below:


(a) Section 1.1 - Amended Definitions. Section 1.1 of the Loan
Agreement is amended by deleting the current versions of the following
definitions and substituting the following versions of such definitions in
appropriate alphabetical order:


Default Rate: the Base Rate from time to time in effect plus
8.0% per annum.


Default Rate Period: a period of time commencing on the date
that a Forbearance Default has occurred and ending on the date that
such Forbearance Default is cured or waived.


Maturity Date: the earliest to occur of (i) December 31, 2001,
(ii) the expiration of the Forbearance Period and (iii) the date on
which Borrower's Obligations are accelerated pursuant to this Loan
Agreement.


(b) Section 1.1 - Additional Definitions. Section 1.1 of the Loan
Agreement is amended by inserting the following definitions in appropriate
alphabetical order:


Forbearance Agreement: the Forbearance Agreement and Third
Amendment to Loan Instruments dated as of June 7, 2001 between
Borrower and FINOVA.


Forbearance Default: any Event of Default other than the
Subject Defaults.


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Forbearance Period: the period of time (i) commencing on June
7, 2001 and (ii) ending on the earlier of (A) December 31, 2001 or (B)
the date Agent notifies Borrower of the occurrence of a Forbearance
Default and of Agent election to terminate the Forbearance Period as a
result of such Forbearance Default.


Operating Revenue: the gross cash revenues of Borrower derived
from the operation of its business in the ordinary course and not from
any other source (such as payments on account of notes receivable,
Equity Contribution Proceeds or asset sales outside the ordinary course
of business).


Non-Operating Revenue: the gross cash revenues of Borrower derived
from sources outside the operation of its business in the ordinary
course (such as payments on account of notes receivable, Equity
Contribution Proceeds or asset sales outside the ordinary course of
business).


Subject Defaults: the Events of Default described on Exhibit A
attached to the Forbearance Agreement.


(c) Subsection 2.2.1. Subsection 2.2.1 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:


"2.2.1 Interest Rate. Except as provided in Section 2.5, the
Principal Balance shall bear interest at the Base Rate from time to
time in effect plus 6.0% per annum."


(d) Subsection 2.2.2. Subsection 2.2.2 of the Loan Agreement is deleted
in its entirety and the following is substituted therefor.


"2.2.2 Intentionally Omitted."


(e) Subsection 2.2.3. Subsection 2.2.3 of the Loan Agreement is
deleted in its entirety and the following is substituted therefor:


"2.2.3 Interest Computation. Interest shall be computed on the
basis of a year consisting of 360 days and charged for the actual
number of days during the period for which interest is being charged. In
computing interest, the Closing Date shall be included and the date of
payment shall be excluded."


(f) Subsection 2.2.5. Subsection 2.2.5 of the Loan Agreement is deleted
in its entirety and the following is substituted therefor:


"2.2.5 Intentionally Omitted."


(g) Section 2.3. Section 2.3 of the Loan Agreement and each subsection
contained therein are deleted in their entirety and the following is
substituted therefor:


"2.3 Intentionally Omitted."


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(h) Subsection 2.4. Subsection 2.4 of the Loan Agreement and each subsection contained therein are deleted in their entirety and the following is substituted therefor:


"2.4 Principal and Interest Payments.


2.4.1 Interest. Except as otherwise provided in subsection
2.8.1(c) and 2.8.2(e), interest which accrues during the Forbearance
Period shall be added to the Principal Balance monthly in arrears on
the first Business Day of each month during the Forbearance Peri
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