|
Exhibit 10.1
FORBEARANCE AGREEMENT
This Forbearance Agreement (" Agreement ")
is made as of November 29, 2006 by and between SEQUIAM CORPORATION,
a California corporation having a place of business and mailing
address at 300 Sunport Lane, Orlando, Florida 32809 ("
Borrower ") and Stephen A. Ross, as duly authorized agent
for the TRUST UNDER THE WILL OF JOHN SVENNINGSEN, having a place of
business and mailing address at 33 Whitney Avenue, New Haven,
Connecticut 06510 (" Holder ").
BACKGROUND:
|
A.
|
On May 18, 2005, Borrower and Holder’s
predecessor-in-interest, Lee Harrison Corbin, Attorney-in-Fact, for
the Trust Under the Will of John Svenningsen, entered into that
certain Securities Purchase Agreement (the " SPA "),
pursuant to which, among other things, Borrower agreed to issue a
warrant to Holder to purchase up to 10,025,000 of Borrower’s
common stock.
|
|
B.
|
In connection with the SPA, on May 18, 2005,
Borrower executed that certain Amended, Restated and Consolidated
Senior Secured Term Note in favor of Holder’s
predecessor-in-interest, Lee Harrison Corbin, Attorney-in-Fact, for
the Trust Under the Will of John Svenningsen (the " Note "),
pursuant to which, among other things, Holder agreed to advance
certain amounts to Borrower and to consolidate certain existing
loans and other credit accommodations into a single note evidencing
principal indebtedness of $3,650,000 (the " Loan
").
|
|
C.
|
The SPA and the Note, together with all other
agreements, notes, instruments, warrants, security agreements, and
other documents previously, now or hereafter executed and delivered
to Holder governing the transactions between Holder and Borrower,
including without limitation, the Loan, as same may have been or be
amended, restated, supplemented or modified from time to time, are
collectively referred to herein as the " Loan Documents
".
|
|
D.
|
Borrower has previously acknowledged and agreed
that certain defaults and/or events and/or conditions which, upon
declaration by Holder and/or with notice or the lapse of time, or
both, would become events of default under the Loan Documents, have
occurred and are continuing, which if declared and the obligations
under the Loan Documents accelerated, would entitle Holder to
immediate payment in full of all obligations under the Loan
Documents and would also entitle Holder to exercise all rights and
remedies provided for under the Loan Documents if repayment in full
of the obligations thereunder did not occur.
|
|
E.
|
Borrower has requested, and Holder, has agreed,
in accordance with the terms and conditions set forth herein, to
forbear from declaring an event of default under the Loan Documents
and exercising all rights and remedies provided Holder thereunder,
including without limitation, taking action to collect payment in
full of the obligations under the Loan Documents.
|
NOW, THEREFORE, Holder and Borrower agree as
follows:
1. Incorporation
of Recitals . Each of the foregoing
recitals is hereby acknowledged and affirmed as being accurate and
complete and is hereby incorporated as part of this
Agreement.
2. Forbearance
. Subject to the satisfaction of the terms and
conditions set forth herein, until that date (the " Forbearance
Termination Date "), which is the earliest to occur of (a)
December 15, 2006, or (b) the date of the occurrence of any one or
more of the events of default under this Agreement set forth in
Section 6 below, Holder will not exercise or enforce its rights or
remedies against Borrower to which Holder would be entitled under
the terms of the Loan Documents by reason of the existing events of
default thereunder; provided that such
forbearance shall not act as a waiver of Holder's right to enforce
any such right or remedy after the Forbearance Termination Date.
Furthermore, nothing contained herein shall be construed as
requiring Holder to extend the Forbearance Termination Date.
Notwithstanding anything to the contrary set forth in any of the
Loan Documents, Borrower agrees to pay in full in cash on the
Forbearance Termination Date the outstanding principal amount of
all obligations to Holder under the Loan Documents, together with
all interest thereon (including any and all interest accruing at
the default rate of interest) and all costs, fees and expenses of
Holder incurred in connection therewith.
1
3. Payments/Forbearance
Fees. In consideration hereof by
its execution of this Agreement, Borrower hereby authorizes Holder
to charge, on the date hereof, to its revolving loan account a
forbearance fee of $0.
4.
Cross-Default and Cross-Collateralization.
Borrower agrees that (a) all collateral previously,
now or hereafter pledged by Borrower to Holder as collateral
security for any loans, obligations or liabilities of any kind or
description of Borrower to Holder shall serve as security for all
obligations and (b) a default by any of Borrower under the terms of
this Agreement or any of the other Loan Documents shall constitute
a default in and to all obligations and under all of the Loan
Documents. Further, Borrower hereby agrees to execute and deliver
to Holder any and all documents and to do all things that Holder
may require, in its sole and absolute discretion, to give effect to
the cross-collateralization and cross-default of such
obligations.
5. Ratification of
Existing Agreements . Borrower
reaffirms all of the terms, conditions, representations and
warranties of the Loan Documents (except as expressly set forth
herein) and acknowledge that all of the Obligations are, by
Borrower’s execution of this Agreement, ratified and
confirmed in all respects by Borrower. Borrower acknowledges that
all of its obligations, indebtedness and liabilities to Holder
under the Loan Documents are joint and several.
6. Events of
Default . The occurrence of any one or
more of the following events shall constitute an event of default
under this Agreement, it being expressly acknowledged and agreed
that TIME IS OF THE ESSENCE: (a) an event of default under the Loan
Documents (other than those events of default of which Holder is
aware and exist at the time of execution of this Agr
|
