Exhibit
10.1
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:
|
|
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.
|
|
|
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 ”).
|
|
|
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 ”.
|
|
|
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.
|
|
|
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.
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 Agreement); (b) the fai
|
