WAIVER AND CONSENT
EXHIBIT
10.9
Each
of
the undersigned is the holder of a Secured Convertible Promissory Note dated
May
23, 2007 (each a “Note” and collectively the “Notes”) issued to the undersigned
by EVCI Career Colleges Holding Corp. (the “Company”), and as such is entitled
to the benefits of and is subject to the terms of (i) the Security Agreement
dated as of May 23, 2007 by and among the Company, its Subsidiaries and ComVest
Investment Partners III, L.P., as Agent (the “Security Agreement”), and (ii) the
Intercreditor Agreement dated as of April 24, 2007 by and among the undersigned,
the Company and Xxxxxx X.X. (the “Intercreditor Agreement”). The Notes, the
Security Agreement and the Intercreditor Agreement are collectively referred
to
herein as the “Documents”.
Each
of
the undersigned (other than ComVest Investment Partners III, L.P.) is also
party
to a Purchase Agreement pursuant to which, among other things, such persons
purchased their Notes (collectively, the “Subscription
Agreements”).
Anything
contained in the Documents or the Subscription Agreements to the contrary
notwithstanding, each of the undersigned hereby consents and agrees that (a)
the
Company may borrow from ComVest Investment Partners III, L.P., any of its
affiliates and/or any third parties (collectively, “ComVest”) up to $700,000 in
principal amount of indebtedness, (b) the Company and/or any of its subsidiaries
may borrow from ComVest up to an additional $3,000,000 in principal amount
of
indebtedness, (c) the Company and/or any of its subsidiaries may, from time
to
time, borrow from ComVest such additional amounts as may be required for the
operation of the Company’s and its subsidiaries’ businesses, (d) notwithstanding
any limitation on the amount of “Senior Debt” under as defined in the
Intercreditor Agreement, all of such indebtedness may constitute “Senior Debt”
under and for all purposes of the Intercreditor Agreement from and after such
time as ComVest shall have purchased the existing Senior Debt currently held
by
Xxxxxx X.X., and (e) such indebtedness may be guaranteed by the Company and
its
subsidiaries and be secured by all assets of the Company and its subsidiaries,
which security interests shall be senior to the security interests granted
under
the Security Agreement. All of such borrowings may be on such terms and
conditions as may be approved by the Company’s Board of Directors. In addition,
in the event that and at such time as ComVest shall require that any or all
of
the aforesaid loans be assigned to and assumed by a business trust in
conjunction with the assignment to such business trust of the outstanding
capital stock of Technical Career Institutes, Inc. and Pennsylvania School
of
Business, Inc. (such business trust to have trustees comprised of the same
individuals as constitute the Company’s Board of Directors, subject to any
statutory requirement of resident trustees), each of the undersigned hereby
consents and agrees that the Company may assign to such business trust the
undersigned’s Note (which shall thereupon be assumed by such business
trust).
ComVest
Investment Partners III, L.P. and each other of the undersigned hereby confirms
that all of the Notes are equal in rank and have the same rights, including
the
right to receive payments of principal and interest at the same time (subject
to
the Intercreditor Agreement) ratably in accordance with their respective
principal amounts.
Provided
that ComVest Investment Partners III, L.P. executes this Waiver and Consent,
(i)
this Waiver and Consent shall be binding upon each of the undersigned who
executes and delivers this Waiver and Consent, notwithstanding that any of
the
other intended parties hereto fails to execute and deliver this Waiver and
Consent, and (ii) each person executing and delivering this Waiver and Consent
hereby waives any Event of Default (as such term is defined in such person’s
Note) which may exist or arise solely by reason of the Company or any of its
subsidiaries taking any of the actions consented to above without the consent
of
any intended party hereto who does not execute and deliver this Waiver and
Consent (regardless of whether such action may constitute an Event of Default
under and as defined in the Note held by any intended party who does not execute
and deliver this Waiver and Consent).
This
Waiver and Consent shall be binding upon and shall inure to the benefit of
each
of the undersigned and their respective heirs, executors, administrators,
personal representatives, successors and assigns, including but not limited
to
any assignee or subsequent holder (direct or indirect) of any of the
Notes.
This
Waiver and Consent may not be amended or modified except pursuant to a written
agreement signed by the party to be charged therewith.
This
Waiver and Consent shall be governed by and construed in accordance with the
laws of the State of New York.
This
Waiver and Consent may be executed in any number of counterparts, each of which
shall be deemed to constitute an original, but all of which shall together
constitute one and the same agreement. This Waiver and Consent may be executed
by fax signatures, which shall have full binding legal effect.
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remainder of this page is intentionally blank]
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IN
WITNESS WHEREOF, the undersigned have executed this Waiver and Consent as of
this 31st
day of
December, 2007.
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COMVEST
INVESTMENT PARTNERS III, L.P.
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By:
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ComVest
III Partners LLC,
its
General Partner
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| By: |
/s/
Xxxxx X. Xxxxx, Xx.
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Authorized
Signatory
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Xx.
Xxxx X. Xxxxxxxx
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/s/
Xx. Xxxx X. XxXxxxx
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Xx.
Xxxx X. XxXxxxx
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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Xxxxxxx
Xxxxxxxx
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