EXHIBIT 10.1
FORBEARANCE
AGREEMENT
THIS
FORBEARANCE AGREEMENT ("Forbearance Agreement") is entered into
effective March 31, 2009 between MH FINANCIAL ASSOCIATES, LLC
("Lender"), MICROHELIX, INC., and MOORE ELECTRONICS, INC.
(together, "Borrower").
RECITALS:
A. Pursuant
to a Third Agreement Regarding Amendment of Promissory Note (the
"Agreement") dated June 27, 2008, Borrower and Lender entered
into a Third Amended and Restated Promissory Note dated
June 27, 2008 as modified by a Loan Modification Agreement
dated December 31, 2008 (the "Note") whereby Lender agreed to
provide an amended and restated term loan credit facility to
Borrower.
B. Pursuant
to the terms of the Agreement, Borrower is obligated to provide
quarterly internally prepared financial statements within 30 days
after the close of each quarter, together with compliance
certificates executed by borrower's chief financial
officer. Borrower failed to provide the financial
statements and compliance certificates.
C. Borrower
obtained a loan from Aequitas Capital Management, Inc. without
obtaining Lender's prior approval, which constitutes a default
under the Agreement and the Note.
D. Borrower
and Lender desire to enter into this Forbearance Agreement in order
to set forth the terms and conditions under which Lender will
forbear from immediately enforcing all of its available remedies
against Borrower.
E. Capitalized
terms not otherwise defined herein shall have the meanings assigned
to them in the Note.
AGREEMENT:
1.
Acknowledgment and Reaffirmation of Indebtedness.
Borrower acknowledges, reaffirms and agrees that it
unconditionally owes the Lender the full amount of the indebtedness
under the Note without setoff, defense, counterclaim or claim of
recoupment of any kind whatsoever and that Borrower's prior grant
of security interests in the Collateral to Lender is valid,
perfected and enforceable without defense, counterclaim or claim of
recoupment of any kind whatsoever.
2.
Lender's Conditional Forbearance. Subject to the
provisions of this Agreement and the consideration as provided in
Section 3 below, Lender will conditionally forbear from
immediately exercising its rights and remedies against Borrower and
the Collateral. Lender's continued forbearance is and
shall remain subject to Borrower's complete, continuous and timely
satisfaction of each of the following conditions:
2.1 Borrower
shall make all payments under the Note when due.
2.2 Borrower
shall fully and timely perform, within any applicable cure period,
all of its obligations to Lender under the Agreement, the Note and
under any other agreements with Lender to which Borrower is a party
(either now or in the future).
Provided that
Borrower satisfies these conditions, and so long as there is no new
Event of Default, interest shall accrue at the non-default rate
specified in the Note and Lender will waive any late charges
accrued to date as specified in the Note.
3.
Consideration. In consideration of Lender's
waiver and conditional forbearance, Borrower hereby releases and
discharges Lender and Lender's members, managers, successors,
assigns, employees and attorneys, and each of them, of and from any
and all claims, demands, damages, suits, rights, d
