Form of Forbearance Agreement



 Exhibit 10.1 
 FORBEARANCE AGREEMENT 
 FORBEARANCE AGREEMENT,
dated as of December 22, 2009 (the “Agreement”), with respect to the Term Loan and Security Agreement dated as of November 19, 2008 by and among CAPITAL GROWTH SYSTEMS, INC., d/b/a Global Capacity, a Florida corporation
(“Parent”), GLOBAL CAPACITY GROUP, INC., a Texas corporation (“GCG”), CENTREPATH, INC., a Delaware corporation (“Centrepath”), 20/20 TECHNOLOGIES, INC., a Delaware corporation (“20/20
Inc.”), 20/20 TECHNOLOGIES I, LLC, a Delaware limited liability company (“20/20 LLC”), NEXVU TECHNOLOGIES, LLC, a Delaware limited liability company (“Nexvu”), CAPITAL GROWTH ACQUISITION, INC., a Delaware
corporation (“CG Acquisition”), FNS 2007, INC., a Delaware corporation (“FNS”), GLOBAL CAPACITY DIRECT, LLC f/k/a VANCO DIRECT USA, LLC, a Delaware limited liability company (“GCD”), and MAGENTA
NETLOGIC LIMITED, a company incorporated under the laws of England and Wales (“Magenta”; Parent, GCG, Centrepath, 20/20 Inc., 20/20 LLC, Nexvu, CG Acquisition, FNS, GCD and Magenta each referred to herein individually as a
“Borrower” and collectively as the “Borrowers”), ACF CGS, L.L.C., a Delaware limited liability company, as administrative agent (the “Agent”), and the lenders party thereto from time to time (as
amended, modified and/or restated from time to time, the “Loan Agreement”; all capitalized terms used and not otherwise defined herein shall have their respective meanings as set forth in the Loan Agreement). 
 WHEREAS, one or more Defaults exist under Section 13 of the Loan Agreement as a result of the (i) Borrowers’
noncompliance with the covenants set forth in (y) Item 19(a) of the Addendum to the Loan Agreement (Minimum EBITDA) for the testing period ended October 31, 2009 and (z) Item 19(e) of the Addendum to the Loan
Agreement (Vendor Disbursements) for the testing periods ending November 6, 2009, November 13, 2009, November, 20, 2009, November 27, 2009, December 4, 2009, December 11, 2009, and December 18,
2009; (ii) the existence of events of default under the Debenture Documents, and (iii) the failure of Parent to deliver a landlord waiver in form and substance reasonably satisfactory to Agent for the Borrowers’ office space located
at 200 South Wacker Street, Chicago, Illinois as required under Section 9(i)(iii)(b) (collectively, the “Specified Defaults”). 
 WHEREAS, the Borrowers have requested that the Agent and the Lenders temporarily forbear from exercising certain rights and remedies under the Loan Agreement and the Agent and the Lenders have agreed to
do so, but only upon the terms and conditions set forth herein; and 
 NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 
 SECTION 1. Forbearance.

 (a) Acknowledgment of Defaults and Rights and Remedies. The Borrowers acknowledge and agree that (i) the Specified
Defaults have occurred and are continuing, and (ii) but for the terms of this Agreement, the Agent and the Lenders may, if they so elect, exercise their respective rights and remedies in respect of the Specified Defaults. 







 (b) Forbearance. Subject to all of the terms and conditions set forth herein, the
Agent and the Lenders agree to forbear from exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely on the occurrence of the Specified Defaults until that date (the
“Forbearance Termination Date”; the period from the Effective Date (as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)) which is the earliest to occur of the following:
(1) the date on which any Default other than (i) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure of any Borrower to comply
with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse
witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection
with or related to any of the transactions contemplated by the Loan Agreement or any of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed in connection with this Agreement; (4) the date any
third party exercises any right or remedy it may have as a result of any of the Specified Defaults or any of the events or omissions that constitute the Specified Defaults (including, without limitation and in any event, accelerating the payment of
any Indebtedness, declaring an “event of default”, exercising default remedies with respect to any collateral security); or (5) 12:01 A.M. (New York time) on January 26, 2010. On and after the Forbearance Termination Date, the
Agent and each of the Lenders may proceed, without any requirement for notice to the Borrowers or any other obligor, to enforce any or all of their rights and remedies under or in respect of this Agreement, the Loan Agreement, any of the other Loan
Documents or applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documents. 
 SECTION 2. Additional Agreements. 
 (a) The Borrowers agree that they will not, without Agent’s prior written consent, (i) make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or
acquisition) with respect to any Indebtedness (other than the Obligations) prior to its due date under the agreements evidencing such Indebtedness (other than trade payables that are paid in the ordinary course of business and scheduled payments
pursuant to the Vendor Payment Plan Budget), or (ii) make any payments to any Person outside of the ordinary course of the Borrowers’ business (other than scheduled payments made pursuant to the Vendor Payment Plan Budget). Notwithstanding
the foregoing, should any Borrower enter into an agreement for the assignment of certain customer contracts on terms and conditions satisfactory to Agent, then the consummation of the transactions contemplated in such sale agreement shall not
constitute a breach of this Agreement or the Loan Agreement. 
 (b) Each Borrower shall (i) permit the Agent, the Lenders
and the Agent’s professionals to have reasonable direct access to each Borrower and Borrowers’ counsel and other advisors, at such times as they may reasonably request, to review and discuss the BT Receivable litigation or arbitration
proceeding (so long as such updates do not violate any attorney-client privilege or any orders of the applicable court), (ii) consult with the Agent prior to

  

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any settlement of any litigation or proceedings with respect to the BT Receivable, and (iii) provide such additional information with respect to the foregoing as requested by Agent.

 (c) The Borrowers acknowledge and agree that this Agreement constitutes a Loan Document and that the failure of any of the
Borrowers to comply with the provisions of this Agreement shall constitute a Default (without need for notice of any kind or any passage of time). 
 (d) The Borrowers agree that from and after the Effective Date Section 13(a)(ii) of the Loan Agreement is hereby amended by deleting such section in its entirety and replacing it with the
following: 
 “(ii) (A) breach by any Credit Party of any covenant or failure to perform any agreement
or failure to meet any Credit Party’s obligations contained in Sections 7(f) and (k), 8, 9, and Item 19 of the Addendum (Financial Covenants), or (B) breach by any Credit Party of any other covenant or failure to perform any
other agreement or failure to meet any other obligations contained herein, in any of the other Loan Documents or in any agreement out of which the Obligations arose if such failure continues for five (5) Business Days;” 
 (e) The Borrowers confirm that they are obligated to pay all accrued fees and expenses incurred by the Agent to date, including the
reasonable fees, charges and disbursements of Greenberg Traurig, LLP, counsel to the Agent. Thereafter, the Borrowers shall pay all reasonable attorneys’ fees, costs and expenses in connection with all other matters related to this Agreement or
the Loan Agreement, including the reasonable fees and expenses of Greenberg Traurig, LLP, counsel to the Agent. 
 (f) Pursuant
to Item 19(e) of the Addendum, attached hereto as Exhibit A is an updated Vendor Payment Plan Budget approved by Agent which shall be effective for the testing period ending December 18, 2009 through the testing period ending
on January 15, 2010. 
 (g) On or before December 28, 2009, the Borrowers shall enter into a definitive transaction
that will result in a mandatory pay down of the Term Loan in an amount not less than $4,000,000 (the terms and conditions of such transaction subject to the sole and absolute satisfaction of the Agent). 
 (h) In consideration of Agent and the Lenders entering into this Agreement, Borrowers hereby agree to pay to Agent, for the account of the
Lenders, Default Interest accruing from and after November 6, 2009 through January 26, 2010 in the amount of $83,235.00 (the “Default Interest Payment Amount”), which amount shall be paid in cash simultaneously with the
execution of this Agreement, and shall be non-refundable. During the Forbearance Period PIK Interest shall continue to accrue and shall not be payable in cash unless and until demanded to be paid in cash by the Agent. 
 SECTION 3. Conditions Precedent. 
 This Agreement shall become effective on the date (the “Effective Date”) upon which the following conditions have been satisfied in full or waived by the Agent in writing: 
 (a) The Agent shall have received an executed counterpart of this Agreement duly executed by the Borrowers, the Agent and
each of the Required Lenders; 
  

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 (b) All representations and warranties contained in this Agreement or
otherwise made in writing to the Agent in connection herewith shall be true and correct; 
 (c) As of the date
all other conditions in this Section 3 are satisfied, no Default (other than the Specified Defaults) shall have occurred and be continuing; 
 (d) The Borrowers shall have obtained all necessary equity holder and board approvals and consents; 
 (e) All legal matters in connection with this Agreement shall be satisfactory to the Agent; and 
 (f) Borrowers shall have paid (i) all outstanding invoices of Greenberg Traurig LLP delivered to the Borrowers on or before the Effective Date, and (ii) the Default Interest Payment Amount.

 SECTION 4. Representations and Warranties. After giving effect to this Agreement, each of the Borrowers, jointly and
severally, reaffirm and restate the representations and warranties set forth in Section 4 of the Loan Agreement and in the other Loan Documents (except to the extent such representations and warranties (i) expressly relate to an
earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, and (ii) are untrue as a result of the occurrence or continuance of any of the Specified Defaults) and
all such representations and warranties shall be true and correct on the date hereof with the same force and effect as if made on such date. Each of the Borrowers represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Agent and the Lenders that: 
 (a) It has the power and authority to
execute, deliver and carry out the terms and provisions of this Agreement and the transactions contemplated hereby and has taken or caused to be taken all necessary action to authorize the execution, delivery and performance of this Agreement and
the transactions contemplated hereby; 
 (b) No consent of any Person (including, without limitation, any of its
equity holders or creditors), and no action of, or filing with, any governmental or public body or authority is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Agreement;

 (c) This Agreement has been duly executed and delivered on its behalf by a duly authorized officer, and
constitutes its legal, valid and binding obligation enforceable in accordance with its terms, subject to bankruptcy, reorganization, insolvency, moratorium and other similar laws affecting the enforcement of creditors’ rights generally and the
exercise of judicial discretion in accordance with general principles of equity; and 
  

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 (d) The execution, delivery and performance of this Agreement will not
violate any law, statute or regulation, or any order or decree of any court or governmental instrumentality, or conflict with, or result in the breach of, or constitute a default under, any contractual obligation of any Borrower. 
 SECTION 5. Acknowledgment of Liens. Each of the Borrowers hereby ratifies and confirms the grant of the security interest in and the
Liens on its Collateral contained in the Loan Documents to which it is a party which were granted pursuant to the Loan Documents or otherwise. 
 SECTION 6. Ratification; Waiver of Defenses; and Release. 
 (a) Except as
herein agreed, the Loan Agreement and the other Loan Documents remain in full force and effect and are hereby ratified and affirmed by the Borrowers. Each of the Borrowers hereby (i) confirms and agrees that the Borrowers are truly and justly
indebted to the Agent and the Lenders in the aggregate amount of the Obligations without defense, counterclaim or offset of any kind whatsoever; and (ii) reaffirms and admits the validity and enforceability of the Loan Agreement and the other
Loan Documents. 
 (b) Each of the Borrowers, on its own behalf and on behalf of its successors and assigns, hereby waives,
releases and discharges the Agent and each Lender and all of the affiliates of the Agent and each Lender, and all of the directors, officers, employees, attorneys, agents, successors and assigns of the Agent, each Lender and such affiliates, from
any and all claims, demands, actions or causes of action (known and unknown) arising out of or in any way relating to any of the Loan Documents or any documents, agreements, dealings or other matters connected with any of the Loan Documents, in each
case to the extent arising (x) on or prior to the date hereof or (y) out of, or relating to, any actions, dealings or matters occurring on or prior to the date hereof. The waivers, releases, and discharges in this Section 6
shall be effective on the Effective Date regardless of whether any post-Effective Date conditions to this Agreement are satisfied and regardless of any other event that may occur or not occur after the date hereof. 
 (c) This Agreement shall be limited precisely as written and, except as expressly provided herein, shall not be deemed (i) to be a
consent granted pursuant to, or a waiver, modification or forbearance of, any term or condition of the Loan Agreement, the other Loan Documents or any of the instruments or agreements referred to therein or a waiver of any Default (including,
without limitation, the Specified Defaults), whether or not known to the Agent or any of the Lenders, or (ii) to prejudice any right or remedy which the Agent or any of the Lenders may now have or have in the future under or in connection with
the Loan Agreement, the other Loan Documents or any of the instruments or agreements referred to therein. Subject to the forbearance in respect of the Specified Defaults set forth in Section 1(b) above, the Loan Agreement, the other Loan
Documents and each of the other Loan Documents shall continue in full force and effect and are hereby ratified and confirmed. 
 (d) Parent and Borrowers expressly acknowledge the occurrence and continued existence of the Specified Defaults. Parent and Borrowers agree that Agent and Lenders have no obligation (i) to grant the forbearance contemplated by this
Agreement, (ii) to

  

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enter into discussions with Parent and Borrowers with regard to waiving the Specified Defaults and/or modifying the financial covenants set forth in the Loan Agreement, or (iii) to enter
into any amendment or modification of the terms and provisions of the Loan Agreement or the other Loan Documents, and any of the same shall be within the sole discretion of the Agent and the Lenders. Parent and Borrowers expressly acknowledge and
agree, as a condition of Agent and Lenders entering into this Agreement, that they shall not raise any claim, cause of action or defense based upon any allegations of failure of Agent and Lenders to do or agree to do any of the foregoing, or failure
of Agent or Lenders to negotiate in good faith to accomplish any of the same. 
 SECTION 7. References. All references to
the “Loan Agreement”, “thereunder”, “thereof” or words of like import in the Loan Agreement or any other Loan Document and the other documents and instruments delivered pursuant to or in connection therewith shall mean
and be a reference to the Loan Agreement and as each may in the future be amended, restated, supplemented or modified from time to time. 
 SECTION 8. Counterparts. This Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by telecopier or electronic transmission (in pdf format) shall be effective as delivery of a manually executed counterpart of this
Agreement. 
 SECTION 9. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns. 
 SECTION 10. Severability. If any provision
of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without in any manner affecting the
validity or enforceability of such provision in any other jurisdiction or the remaining provisions of this Agreement in any jurisdiction. 
 SECTION 11. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK. 
 SECTION 12. Miscellaneous. The parties hereto shall, at any time from time to time following
the execution of this Agreement, execute and deliver all such further instruments and take all such further action as may be reasonably necessary or appropriate in order to carry out the provisions of this Agreement. 
 SECTION 13. Headings. Section headings in this Agreement are included for convenience of reference only and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement. 
  

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 IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year first above written. 
  

			
	BORROWERS:
	
	CAPITAL GROWTH SYSTEMS, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	GLOBAL CAPACITY GROUP, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	CENTREPATH, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	20/20 TECHNOLOGIES, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	20/20 TECHNOLOGIES I, LLC
		
	By:	 	  

	Name:	 	  

	Title:	 	  











			
	NEXVU TECHNOLOGIES, LLC
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	CAPITAL GROWTH ACQUISITION, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	FNS 2007, INC.
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	GLOBAL CAPACITY DIRECT, LLC f/k/a VANCO DIRECT USA, LLC
		
	By:	 	  

	Name:	 	  

	Title:	 	  

	
	MAGENTA NETLOGIC LIMITED
		
	By:	 	  

	Name:	 	  

	Title:	 	  











			
	AGENT and REQUIRED LENDER:
	ACF CGS, L.L.C.
		
	By:	 	  

	Name:	 	  

	Title:	 	  










 EXHIBIT A 
 Updated Vendor Payment Plan Budget