FORBEARANCE AGREEMENT
EXHIBIT
10.8
THIS
FORBEARANCE AGREEMENT (the "Agreement"),
dated
as of this 31st
day of
December, 2007, by and among EVCI Career Colleges Holding Corp., a Delaware
corporation ("Borrower"),
the
direct and indirect Subsidiaries of Borrower from time to time party to this
Agreement, as Guarantors, and ComVest Investment Partners III, L.P.
("Lender").
BACKGROUND
A. Borrower,
Interboro Institute, Inc. ("Interboro"),
Interboro Holding, Inc. ("Holding"),
Pennsylvania School of Business, Inc. ("PSB"),
Technical Career Institutes, Inc. ("TCI"
and
together with Interboro, Holding and PSB, the "Guarantors")
and
Xxxxxx X.X. entered into a Credit Agreement dated as of September 16, 2005
(the
"Original
Credit Agreement")
pursuant to which Xxxxxx X.X. made available to Borrower a term loan in the
original principal amount of $13,000,000 and a revolving credit facility in
the
maximum principal amount of $3,000,000. Borrower, Guarantors and Xxxxxx X.X.
entered into an Amended and Restated Credit Agreement dated as of September
16,
2005 and amended and restated as of March 31, 2006 (the "Amended
Credit Agreement")
pursuant to which, among other things, the revolving credit facility was reduced
to $2,000,000 and Xxxxxx X.X. waived certain Existing Events of Default (as
such
term was defined therein). Borrower, Guarantors and Xxxxxx X.X. entered into
a
Second Amended and Restated Credit Agreement dated as of September 16, 2005,
amended and restated as of March 31, 2006 and further amended and restated
as of
April 24, 2006 (as so amended and as amended hereby and from time to time
hereafter, the "Credit
Agreement")
pursuant to which, among other things, the revolving credit facility was
increased to $5,000,000, Xxxxxx X.X. waived certain Existing Events of Default
(as such term was defined therein) and Xxxxxx X.X. consented to the issuance
of
notes and warrants to Lender and other note purchasers pursuant to a Securities
Purchase Agreement dated as of April 24, 2006 (the "Purchase
Agreement")
between
ComVest and Borrower.
B. On
the
date hereof, Lender has purchased from Xxxxxx X.X. all of Xxxxxx X.X.’s right,
title and interest in and to the Credit Agreement, all related Loan Documents,
and all obligations of the Borrower and the Guarantors thereunder.
C. The
Borrower's obligations to the Lender are secured by, among other things, a
security interest in all of the property of the Borrower and each Guarantor.
D. Events
of
Default under the Credit Agreement have occurred and are continuing, including
without limitation, Events of Default under Section 9.1(j) and (o) relating
to
Borrower's stated inability to pay its debts as they come due and occurrences
which have had a Material Adverse Effect.
E. The
Borrower and the Lender have conducted discussions regarding the Loans, without
prejudice to or waiver by the Lender of the existing Events of Default and
any
of its rights and remedies. The Lender has at all times reserved its right
to
exercise its remedies at any time. The Borrower acknowledges that, prior to
giving effect to this Agreement: (1) the Lender may declare at any time that
all
amounts under the Loans are due and payable in full and (2) the Lender is
entitled, at this time, without further notice or demand, to exercise its
remedies.
F. The
Borrowers have requested that the Lender: (1) forbear from exercising its rights
and remedies with respect to all existing Events of Default, (2) defer principal
payments until the Maturity Date of the Loans, (3) consent to the incurrence
of
additional Indebtedness for Borrowed Money to Lender (the “Additional
Indebtedness”),
and
(4) make such other amendments and modifications to the Credit Agreement set
forth herein.
F. The
Lender has agreed, subject to the terms and conditions set forth herein, to
forbear with respect to the Events of Default set forth on Schedule 2 attached
hereto (the “Existing
Events of Default”),
to
defer principal payments until the Maturity Date of the Loans, to consent to
the
Additional Indebtedness and to make such other amendments and modifications
to
the Credit Agreement set forth herein.
NOW
THEREFORE, the parties hereto, incorporating the foregoing Background by
reference as if fully set forth below, in consideration of their mutual
covenants contained herein and intending to be legally bound hereby, agree
as
follows:
ARTICLE
I
AMENDMENTS
TO CREDIT AGREEMENT
SECTION
1.1 No
Further Obligations to Make Loans.
Borrowers acknowledge and agree that the Lender has and shall have no further
obligation to make any further Loans under the Credit Agreement, including
without limitation, any further Disallowance Advance. Any Loans made by the
Lender after the occurrence of the Existing Events of Default and/or after
the
date hereof shall not constitute a waiver of any Existing Events of Default
and
shall be without prejudice to the Lender's right to refuse to make any further
Loans under and in accordance with the Credit Agreement.
SECTION
1.2 The
Amendments.
Subject
to the satisfaction of the terms and conditions set forth herein, the Credit
Agreement is hereby amended as follows:
(a) Section
1.8(a) of the Credit Agreement is hereby amended in its entirety to read as
follows:
2
(a) Scheduled
Payments of Term Loans.
Borrower
shall repay the Term Loans plus all accrued and unpaid interest thereon and
any
other amount due and payable hereunder on March 31, 2009, the final maturity
thereof.
(b) Section
1.8(b) of the Credit Agreement is hereby amended in its entirety to read as
follows:
(b) Revolving
Loan.
Borrower shall pay the Revolving Loan principal balance as of December 31,
2007,
plus all accrued and unpaid interest thereon and any other amount due and
payable hereunder, on March 31, 2009.
(c) Section
1.9(b) of the Credit Agreement shall not apply to any proceeds of the Additional
Indebtedness received by the Borrower or the Guarantors.
(d) The
following definition contained in Section 5.1 of the Credit Agreement is hereby
amended to read as follows:
"Loan
Documents"
means
this Agreement, the Notes, the Applications, the Collateral Documents, the
Guaranties, the Intercreditor Agreement, the Forbearance Agreement and all
other
agreements and instruments extending, renewing, refinancing or refunding any
indebtedness, obligation or liability arising under any of the foregoing, in
each case as the same may be amended, modified or supplemented from time to
time
hereafter and any other agreement, instrument or document executed in connection
herewith or in connection with the Forbearance Agreement.
(e) Section
5.1 of the Credit Agreement is hereby amended to incorporate the following
definitions, which shall read as follows:
"Additional
Comvest Documents"
means
those certain loan documents of even date herewith among the Borrower, the
Guarantors and Lender.
"Forbearance
Agreement"
means
the Forbearance Agreement among the Borrower, the Guarantors and Lender dated
December 31, 2007.
(f) Upon
the
consummation of any Restructuring (as such term is defined in Section 1(g)
below), the Borrower and the Guarantors shall cause the Business Trust (as
such
term is defined in Section 2.2(c) below) to become a Guarantor under the Credit
Agreement pursuant to a joinder agreement in form and substance satisfactory
to
the Lender, and to join in, become a party to and agree to be bound by the
Security Agreement (including, without limitation, the grant thereunder by
the
Business Trust of Liens on all of its assets) pursuant to a joinder agreement
in
form and substance satisfactory to the Lender.
3
(g) Any
Events of Default pursuant to Sections 8.7 and 8.8 as a result of any
“Restructuring” under and as defined in the loan agreements evidencing the
Additional Indebtedness (“Restructuring”)
shall
be considered Existing Events of Default.
(h) Section
8.21 and 8.22 of the Credit Agreement are hereby amended in their entirety
to
read as follows:
Section
8.21 Financial Covenants.
(a) Intentionally
Omitted.
(b) Intentionally
Omitted
(c) Intentionally
Omitted.
(d) Intentionally
Omitted
Section
8.22 Payments
to Junior Creditor.
Excluding payments made on the Closing Date from the proceeds of the Notes
and
interest payments expressly permitted under the immediately following sentence,
Borrower shall not make any cash payment on the notes issued under the Purchase
Agreement or any other Indebtedness to any Junior Creditor (as such term is
defined in the Intercreditor Agreement) prior to March 31, 2009. Borrower may
pay interest to Junior Creditor at any time through the issuance of additional
notes on substantially the same terms as the notes issued under the Purchase
Agreement on the Closing Date.
SECTION
1.4 Modification
of Loan Documents.
The
provisions contained in this Article I modify and supersede any contrary
provisions contained in the Credit Agreement and the other Loan Documents.
Except for the modifications contained herein, the Credit Agreement and the
other Loan Documents remain in full force and effect.
ARTICLE
II
THE
FORBEARANCE COVENANT
SECTION
2.1 The
Forbearance.
Borrowers acknowledge and agree that the Lender shall have the free and
unrestricted right, at any time and from time to time, to exercise any and
all
rights available to the Lender under the Credit Agreement and the other Loan
Documents; provided, however, that unless and until a Forbearance Default (as
hereinafter defined) shall occur, the Lender shall not, prior to December 31,
2008, exercise or attempt to exercise any right or remedy otherwise available
to
the Lender after the occurrence of an Event of Default with respect to the
Loan
Documents, including, without limitation, filing any action or proceeding
against Borrower or any Guarantor, foreclosing or executing upon or seeking
to
foreclose or execute upon the collateral or any part thereof whether in a
judicial or nonjudicial proceeding (the forbearance from such actions by the
Lender, subject to the terms and conditions of this Agreement, being herein
referred to as the "Forbearance
Covenant").
Borrowers expressly acknowledge and agree, however, that from and after January
1, 2009 or such earlier date as a Forbearance Default may occur, the Lender
shall have the right, at any time and from time to time, to exercise any and
all
rights and remedies available to it under the Loan Documents or hereunder and
against or with respect to the collateral, at law and in equity, without notice
to Borrowers and without the passage of any grace or cure period notwithstanding
anything to the contrary set forth in the Loan Documents, to the same extent
as
the Lender would be entitled if the Forbearance Covenant had never been part
of
this Agreement.
4
SECTION
2.2 Forbearance
Defaults.
For the
purposes of the Forbearance Covenant, each of the following shall constitute
a
"Forbearance
Default":
(a) any
Event
of Default occurs under and as defined in the Loan Documents, except for the
Existing Events of Default; or
(b) any
Event
of Default occurs under and as defined in Section 6.1 of this Agreement;
or
(c) the
Borrower fails to (i) enter into a stock or asset purchase agreement providing
for the sale of the stock or assets of TCI, PSB and/or the business trust
participating in any Restructuring (the “Business
Trust”)
with a
purchase price no less than the amount necessary to pay the Obligations in
full
on or before April 1, 2008, or (ii) hire an investment banker reasonably
acceptable to the Lender on or before April 1, 2008, to conduct a process for
the sale of TCI, PCB and/or the Business Trust within a time frame reasonably
calculated in order that, not later than November 30, 2008, a definitive
agreement with a financially capable buyer(s) (who shall be reasonably
satisfactory to the Lender) and containing no financing contingency can be
expected to be executed and delivered for the sale(s) of TCI, PSB and/or the
Business Trust (provided that the closing of any such transaction may be subject
to obtaining applicable regulatory approvals); or
(d) Borrower
or the Guarantors do not enter into a stock or asset purchase agreement
providing for the sale of the stock or assets of TCI and/or PSB to a financially
capable buyer with a purchase price no less than the amount necessary to pay
the
Obligations in full on or before November 30, 2008.
5
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
Borrower
and Guarantors hereby make the following representations and warranties to
the
Lender which shall be true and correct on and as of the date
hereof:
SECTION
3.1 No
Waiver of Existing Events of Default. The
Existing Events of Default have occurred and are continuing under the Loan
Documents. Neither this Agreement nor any actions taken by any of the parties
pursuant to this Agreement shall be deemed to cure the Existing Events of
Default or any other existing Defaults or Events of Default under the Loan
Documents or shall be deemed to be a waiver by the Lender of the Existing Events
of Default or any other existing Defaults or Events of Default under the Loan
Documents or of any rights or remedies in connection therewith or with respect
thereto, it being the intention of the parties hereto that the obligations
of
Borrower and Guarantors are and shall remain in default notwithstanding this
Agreement; and except as set forth herein to the contrary, that the Lender
reserves all rights and remedies under the Loan Documents, at law and in equity,
in connection with such defaults and any future defaults.
SECTION
3.2 Other
Creditors.
Neither
the execution and delivery of this Agreement nor the performance of any actions
required hereunder or described herein is being consummated by Borrower or
Guarantors with or as a result of any actual intent by Borrower or Guarantors,
to hinder, delay or defraud any entity to which Borrower or Guarantors, are
now
or will hereafter become indebted.
SECTION
3.3 Material
Inducement.
Borrower and Guarantors acknowledge and agree that the representations,
warranties, covenants and agreements of Borrower and Guarantors contained in
this Agreement are a material part of the consideration received by the Lender;
are a material inducement to the Lender for the execution and delivery by the
Lender of this Agreement; are made with the intent that the Lender rely upon
them and the understanding that the Lender is relying upon them and that such
reliance by the Lender is reasonable.
SECTION
3.4 Existing
Events of Default.
The
Existing Events of Default are the only Events of Default existing as of the
date of this Agreement. Moreover, Borrower and Guarantors are not aware of
any
potential for the occurrence of any further Events of Default other than
continuance of the Existing Events of Default.
SECTION
3.5 No
Defenses.
Borrower and Guarantors hereby confirm that they have no set-offs, defenses
or
counterclaims to enforcement of the indebtedness evidenced by the Loan
Documents.
6
ARTICLE
IV
COVENANTS
OF BORROWER AND GUARANTORS
So
long
as any indebtedness owing to the Lender under the Loan Documents is outstanding,
and unless compliance with this Article IV (or any part hereof) is waived by
the
Lender in writing in advance of any violation of any of the covenants contained
herein:
SECTION
4.1 Indemnification.
Borrower and Guarantors jointly and severally agree to indemnify and hold
harmless the Lender and the past, present and future officers, directors,
employees, agents, attorneys, representatives, participants, heirs, successors
and assigns thereof (collectively, the "Indemnitees")
from
and against any and all claims, damages, liabilities, judgments and expenses
including, without limitation, reasonable fees and disbursements of counsel
including, without limitation, all such fees and disbursements arising in
connection with the bankruptcy proceedings of Borrower and Guarantors, which
may
be instituted by Borrower and Guarantors or Borrower or any Guarantor, their
respective agents, designees or representatives against any of the Indemnitees
as a result of any transaction contemplated by this Agreement or any action
or
nonaction arising from this Agreement.
ARTICLE
V
CONDITIONS
PRECEDENT
SECTION
5.1 General
Conditions Precedent.
As a
condition precedent to the obligation of the Lender to enter into the amendments
set forth in Article I hereof and to forbear from exercising its remedies in
accordance with Article II hereof, Borrowers shall deliver to the Lender on
or
before the date of this Agreement the following:
(a) this
Agreement duly executed by Borrower and Guarantors;
(b) a
copy,
certified in writing as of the Closing Date (as defined below) by the Secretary
or Assistant Secretary of Borrower and each Guarantor, of resolutions of the
Board of Directors of such Person evidencing approval of this Agreement and
the
transactions contemplated herein and the Restructuring Transaction;
(c) in
connection with any Restructuring as hereinabove described, any transferee
of
any assets of Borrower or Guarantors (including capital stock) shall assume
or
guaranty and become surety for the Obligations and shall pledge and grant a
security interest in and to all of its assets to the Lender;
(d) payment
of all costs and out-of-pocket expenses (including, without limitation,
reasonable attorneys' fees and costs) of the Lender in connection with this
Agreement which includes, among other things, the preparation of this Agreement
and related modification documents, all related filings and recordation fees
and
taxes, and the enforcement of the Loan Documents and all costs and expenses
incurred in connection with the above; and
7
(e) such
other documents as the Lender may reasonably require.
SECTION
5.2 Additional
Conditions Precedent.
The
obligations of the Lender hereunder are subject to the further conditions
precedent that:
(a) the
representations and warranties contained in this Agreement shall be correct
on
the date hereof; and
(b) no
Event
of Default shall have occurred and be continuing after giving effect to this
Agreement (including without limitation under Section 6.24 (s) and (t) of the
Credit Agreement) excluding the Existing Events of Default.
The
date
on which all of the conditions contained herein are satisfied shall be the
"Closing Date".
ARTICLE
VI
EVENTS
OF DEFAULT; REMEDIES
SECTION
6.1 Events
of Default.
For
purposes of this Agreement, each of the following shall constitute an "Event
of
Default":
(a) if
Borrowers shall breach, default under or fail to fully perform any of its
covenants, agreements and obligations under this Agreement; or
(b) if
a
Forbearance Default occurs: or
(c) if
there
is filed any legal proceeding against the Lender or any of its officers,
directors, employees, agents, or attorneys by any person with respect to any
matter involving, relating to or arising out the Loan Documents or this
Agreement, or the administration or enforcement of any of the foregoing;
or
(d) if
any
representation or warranty of Borrower or any Guarantor in this Agreement or
in
any report, certificate, financial statement or other instrument furnished
in
connection herewith shall be untrue, misleading or inaccurate in any material
respect when made or deemed made; or
(e) if
Borrower, any Guarantor, or any person claiming by or through Borrower or any
Guarantor ever commences, joins in, assists, cooperates, or participates in
any
activity which hinders, delays, or impedes exercise by the Lender of its rights
and remedies after occurrence of an Event of Default under this Agreement or
Loan Documents, or files or institutes against the Lender or any of the Lender's
respective officers, directors, employees, agents, accountants or attorneys
any
lawsuit, complaint, administrative claim, adversary proceeding or other legal
action, arising out of or in connection with the Loan Documents or this
Agreement, or the administration or enforcement of any of the foregoing, or
joins in, cooperates, or participates as an adverse party or adverse witness
in
any suit or other proceeding relating directly or indirectly to the Loans or
Loan Documents.
8
SECTION
6.2 Remedies.
Upon
the occurrence of any Event of Default (as defined in Section 6.1 above) the
Forbearance Covenant and any and all other obligations of the Lender pursuant
to
this Agreement shall immediately terminate and be without further force or
effect in the same manner and to the same extent as if the same had never been
included in this Agreement and the Lender shall immediately and without further
notice be entitled to exercise any and all of their respective rights and
remedies against Borrower or any Guarantor, and the Collateral available at
law
or in equity or granted under any of the Loan Documents.
ARTICLE
VII
MISCELLANEOUS
SECTION
7.1 Governing
Law.
This
Agreement shall for all purposes be governed by and construed and enforced
in
accordance with the substantive law of the State of Illinois without giving
effect to the principles of conflict of laws.
SECTION
7.2 Notice
of Proceedings.
Borrower agrees to notify the Lender in writing, promptly upon learning thereof,
of the institution of any suit, administrative proceeding, adversary proceeding,
audit or compliance proceedings of any governmental department or agency or
other legal proceeding which may materially adversely affect the operations,
financial condition or business of Borrower or any Guarantor or any
Collateral.
SECTION
7.3 Further
Assurances.
Borrower and Guarantors agree to execute and deliver to the Lender such
agreements, instruments, documents, financial statements and other writings
as
may be requested from time to time by the Lender, to perfect and to maintain
the
perfection of the Lender's security interest in and to the Collateral and to
consummate the transactions contemplated by or in the Loan Documents or this
Agreement.
SECTION
7.4 Survival
of Agreements and Representations; JURY
WAIVER.
The
covenants, acknowledgements, representations, warranties, waivers, releases,
agreements and obligations of Borrower and Guarantors contained in this
Agreement and the Loan Documents shall survive the expiration or termination
of
the forbearance period described herein and the consummation of the transactions
contemplated by this Agreement. Any and all judicial proceedings brought by
the
Lender against Borrower and Guarantors with respect to this Agreement may be
brought in: (A) any court of competent jurisdiction in the State of Illinois
and
(B) any Federal district court having subject matter jurisdiction and being
located in the State of Illinois.
AFTER CONSULTATION WITH COUNSEL, AND WITH KNOWLEDGE OF THE CONSEQUENCES,
BORROWER, GUARANTORS AND THE LENDER HEREBY WAIVE ALL RIGHTS TO DEMAND A JURY
TRIAL AND AGREE THAT ALL SUITS WILL BE HEARD BY JUDGE ONLY.
9
SECTION
7.5 No
Waivers.
Nothing
contained herein shall constitute a waiver, forbearance, or release by the
Lender of any indebtedness due and owing to the Lender by Borrower, Guarantors
or any of them under loans or extensions of credit not expressly identified
in
this Agreement, and documents related thereto. Nothing contained in this
Agreement shall constitute a waiver of any other rights or remedies of the
Lender under the Loan Documents or at law or in equity. No delay or failure
on
the part of the Lender to exercise any right or remedy hereunder or under the
Loan Documents shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy hereunder or thereunder shall preclude other
or
further exercise thereof or the exercise of any other right or remedy. No action
or forbearance by the Lender contrary to the provisions of this Agreement or
any
of the Loan Documents shall be construed to constitute a waiver of any of the
provisions hereof or thereof. Any party may in writing expressly waive any
of
such party's rights under this Agreement or under any of the Loan Documents
without invalidating this Agreement or any of the Loan Documents or any portion
hereof or thereof. Nothing set forth in this Section 7.5 shall be deemed to
be
in derogation of the Forbearance Covenant set forth in Article II
hereof.
SECTION
7.6 No
Partnership, Joint Venture or Agency.
Neither
this Agreement nor any of the related documents shall in any respect be
interpreted, deemed or construed as making the Lender a partner or joint
venturer with Borrower or Guarantors nor shall they be interpreted, deemed
or
construed as making the Lender the agent or representative of Borrower or
Guarantors, and Borrower and Guarantors hereby agree not to make any contrary
assertion, contention, claim or counterclaim in any action, suit or other legal
proceeding involving the Lender. In no event shall the Lender be liable for
debts or claims accruing or arising against Borrower or Guarantors. The
relationship of the Lender to Borrower or Guarantors is that of "creditor"
to
"debtor".
SECTION
7.7 Successors
or Assigns.
Whenever in this Agreement any party is named or referred to, the successors,
successors-in-title and assigns of such parties shall be included, and all
covenants and agreements contained in this Agreement shall bind and inure to
the
benefit of their respective successors, successors-in-title and assigns, whether
so expressed or not.
SECTION
7.8 Pronouns.
All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural, and vice versa.
10
SECTION
7.9 Construction
of Agreement.
Borrower and Guarantors at all times have had access to an attorney in the
negotiation of the terms of and in the preparation and execution of this
Agreement, and Borrower and Guarantors have had the opportunity to review and
analyze this Agreement for a sufficient period of time prior to the execution
and delivery thereof; no representations or warranties have been made by or
on
behalf of the Lender, or relied upon by Borrower and Guarantors pertaining
to
the subject matter of this Agreement, other than those that are set forth in
this Agreement, and all prior statements, representations and warranties, if
any, are totally superseded and merged into this Agreement, which Agreement
represents the final and sole agreement of the parties with respect to the
matters which are the subject hereof and thereof; that all of the terms of
this
Agreement were negotiated at arms length, and that this Agreement was prepared
and executed without fraud, duress, undue influence or coercion of any kind
exerted by any of the parties upon the others; and that the execution and
delivery of this Agreement is the free and voluntary act of Borrower and
Guarantors.
SECTION
7.10 Invalid
Provision to Affect No Others.
If,
from any circumstances whatsoever, fulfillment of any provision of this
Agreement or any transaction related thereto at the time performance of such
provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable
law, with regard to obligations of like character and amount, then ipso facto,
the
obligation to be fulfilled shall be reduced to the limit of such validity;
and
if any clause or provisions herein contained operates or would prospectively
operate to invalidate this Agreement, in whole or in part, then such clause
or
provision only shall be for naught, as though not herein contained, and the
remainder of this Agreement shall remain operative and in full force and
effect.
SECTION
7.11 Notices.
All
notices, requests, demands and other communications under this Agreement shall
be in writing and shall be given to each party hereto at its address specified
in the Credit Agreement.
SECTION
7.12 Future
Negotiations.
The
parties hereto acknowledge and agree that (A) the Lender has not agreed to
and
has no future obligation whatsoever to discuss, negotiate or agree to any
restructuring of Borrower and Guarantors' obligations with respect to the Loan
Documents or any of them, or any modification, amendment, restructuring or
reinstatement of the Loan Documents or to forbear from exercising its rights
and
remedies under the Loan Documents, except as expressly provided in this
Agreement; (B) that if there are any future discussions among the Lender and
Borrower and Guarantors concerning any such restructuring, modification,
amendment or reinstatement, then no restructuring, modification, amendment,
reinstatement, compromise, settlement, agreement or understanding with respect
to Borrower and Guarantors' obligations with respect to the Loan Documents,
or
any of them, or any aspect thereof, shall constitute a legally binding agreement
or contradict or have any force or effect whatsoever unless and until reduced
to
writing and signed by authorized representatives of all parties, and that none
of the parties hereto shall assert or claim in any legal proceedings or
otherwise that any such agreement exists except in accordance with the terms
of
this Section 7.12.
11
SECTION
7.13 Modifications.
The
terms of this Agreement may not be changed, modified, waived, discharged or
terminated orally, but only by an instrument or instruments in writing, signed
by the party against whom the enforcement of the change, modification, waiver,
discharge or termination is asserted.
SECTION
7.14 Counterparts.
This
Agreement may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which, when so executed and delivered,
shall be an original, but all such counterparts shall together constitute one
and the same instrument; provided, however, that this Agreement shall not be
effective unless and until it is executed by all parties hereto. This Agreement
may be executed by fax signatures, each of which shall be fully binding on
the
signing party.
[The
remainder of this page is intentionally blank]
12
This
Agreement is entered into between us for the uses and purposes hereinabove
set
forth as of the date first above written.
|
"Borrower"
|
||
|
By:
|
/s/
Xx. Xxxx X.
XxXxxxx
|
|
|
Name:
|
Xx.
Xxxx X. XxXxxxx
|
|
|
Title:
|
Chief
Executive Officer and President
|
|
|
"Guarantors"
|
||
|
Interboro
Institute, Inc.
|
||
|
By:
|
/s/
Xx. Xxxx X. XxXxxxx
|
|
|
Name:
|
Xx.
Xxxx X. XxXxxxx
|
|
|
Title:
|
Chief
Executive Officer
|
|
|
Interboro
Holding, Inc.
|
||
|
By:
|
/s/
Xx. Xxxx X.
XxXxxxx
|
|
|
Name:
|
Xx.
Xxxx X. XxXxxxx
|
|
|
Title:
|
President
|
|
|
Pennsylvania
School of Business, Inc.
|
||
|
By:
|
/s/
Xx. Xxxx X.
XxXxxxx
|
|
|
Name:
|
Xx.
Xxxx X. XxXxxxx
|
|
|
Title:
|
Chief
Executive Officer and President
|
|
|
Technical
Career Institutes, Inc.
|
||
|
By:
|
/s/
Xx. Xxxx X. XxXxxxx
|
|
|
Name:
|
Xx.
Xxxx X. XxXxxxx
|
|
|
Title:
|
Chairman
|
|
|
"Lender"
|
||
|
ComVest
Investment Partners III, L.P.
|
||
|
By:
ComVest III Partners LLC, its General Partner
|
||
|
By:
|
/s/
Xxxxx X. Xxxxx, Xx.
|
|
|
Name:
|
Xxxxx
X. Xxxxx, Xx.
|
|
|
Title:
|
Authorized
Signatory
|
|
13
