Exhibit 10.2
SECOND AMENDMENT
TO
FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO FORBEARANCE AGREEMENT (this "Second
Amendment") is made as of December 11, 2003, by and among IMAGEMAX, INC., a
Pennsylvania corporation, and IMAGEMAX OF DELAWARE, INC., a Delaware corporation
(together, the "Borrowers"); the Lenders, as defined in, and who are or may
become a party to the Credit Agreement (as defined below); and COMMERCE BANK,
N.A., as Agent for the Lenders.
Background
Borrowers, Lenders and Agent are parties to that certain Forbearance
Agreement dated as of August 18, 2003 (the "Initial Forbearance Agreement", as
amended by the First Amendment to Forbearance Agreement dated as of September
30, 2003 (the "First Amendment"), and as further amended by this Second
Amendment, collectively, the "Forbearance Agreement"), entered into in
connection with that certain Amended and Restated Credit Agreement, dated as of
June 13, 2002, as amended by the Second Amendment to Credit Agreement dated as
of December 23, 2002, and as further amended by the Second Amendment to Credit
Agreement dated as of April 11, 2003 (the "Credit Agreement"), pursuant to which
the Lenders agreed to extend certain credit facilities to the Borrowers on the
terms and conditions set forth therein and in the other Loan Documents (as
defined in the Credit Agreement). Unless otherwise defined or redefined herein,
each initially capitalized term used herein without definition shall have the
meaning ascribed thereto in the Credit Agreement and the Initial Forbearance
Agreement, as amended by the First Amendment.
Lenders and Agent are willing to reinstate and continue their agreement
to forbear the exercise of their rights under the Credit Agreement and the other
Loan Documents and to reinstate and extend the Forbearance Period in
consideration of the acknowledgements of Borrowers and upon the terms,
conditions, provisions and undertakings of the Borrowers, as hereinafter set
forth.
Except as expressly provided herein, each term, condition and provision
set forth in the Credit Agreement and in each other Loan Document, as the same
may have been modified or amended by the Initial Forbearance Agreement, as
amended by the First Amendment, are intended to be ratified and confirmed herein
in full.
NOW, THEREFORE, in consideration of the mutual covenants and premises
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby mutually acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Confirmation of Background. Each Borrower hereby ratifies, confirms
and acknowledges that the statements contained in the foregoing Background are
true and complete and that the Credit Agreement and each other Loan Document, as
the same may have been modified or amended by the Initial Forbearance Agreement,
as amended by the First Amendment, are valid, binding and in full force and
effect as of the date hereof and fully enforceable against such Borrower in
accordance with the respective terms thereof. Each Borrower further acknowledges
and agrees that nothing contained in the Initial Forbearance Agreement, as
amended by the First Amendment and further amended by this Second Amendment,
shall be deemed to impair, reduce or release in any manner whatsoever any of the
obligations of either Borrower under any Loan Document.
2. General Acknowledgements. Each Borrower hereby acknowledges and
agrees as follows:
2.1 The Forbearance Defaults described in the Background Section of
the Initial Forbearance Agreement have occurred, and, as a consequence thereof,
Events of Default have occurred under the Credit Agreement and the Loan
Documents. With respect thereto, each Borrower hereby waives any requirements
for any further notice or demand from Agent or Lenders in connection therewith;
2.2 As a result of the Forbearance Defaults, Agent, on behalf of
Lenders, has the right to: (i) declare that the entire principal of and interest
on the Loans, the Notes, and all other amounts owed to the Lenders and to the
Agent under the Credit Agreement or any other Loan Document (other than any
Hedging Agreement) (such amounts, the "Indebtedness") and all Obligations under
the Credit Agreement and the Loan Documents are immediately due and payable; and
(ii) exercise all of rights and remedies available to Agent and Lenders under
the Credit Agreement and the other Loan Documents;
2.3 Neither the Initial Forbearance Agreement, as amended by the
First Amendment and as further amended by this Second Amendment, nor any other
agreement entered into in connection herewith or therewith or pursuant to the
terms hereof of thereof (collectively, including this Second Amendment, the
"Forbearance Documents") shall be deemed or construed to be a compromise,
satisfaction, reinstatement, accord and satisfaction, novation or release of the
Credit Agreement or any other Loan Document, any rights or obligations
thereunder, or a waiver by Agent or any Lender of any of their respective rights
under the Credit Agreement or any other Loan Document, or at law or in equity;
2.4 Neither the Initial Forbearance Agreement, as amended by the
First Amendment, and as further amended by this Second Amendment, nor any other
Forbearance Document, nor any action taken pursuant to this Forbearance
Agreement or under any Forbearance Document shall be deemed to: (i) cure any
Default or any other Event of Default which may exist under the Credit Agreement
or any Loan Document; or (ii) be a waiver by Agent or Lenders of the Forbearance
Defaults or any other Event of Default under the Credit Agreement or any Loan
Document or of any rights or remedies in connection therewith or with respect
thereto. Each party hereto intends that the obligations of Borrowers with
respect to the Credit Agreement and each Loan Document are, and shall remain, in
full force and effect; and
2.5 Except as expressly set forth herein, Borrowers hereby ratify,
confirm and reaffirm in all respects, without condition, all terms, covenants
and conditions set forth in the Loan Documents and the Forbearance Documents and
hereby agree that the Borrowers remain jointly, severally and unconditionally
liable to the Agent and the Lenders in accordance with the terms thereof. Each
of the Borrowers further herby ratifies, confirms and reaffirms that all of the
Collateral (as defined in Section 7.1 below), liens, security interests and
pledges created pursuant to the Loan Documents, and/or referenced therein, shall
continue unimpaired, in full force and effect, and secure and shall continue to
secure each of the Borrower's Obligations to the Agent and the Lenders. Without
limiting the foregoing, Borrowers each hereby ratify, confirm and reaffirm that
any and all warrants of attorney contained in any of the Loan Documents and in
any of the Forbearance Documents to confess judgment against any or all of the
Borrowers remain in full force and effect and that such warrants of attorney
were knowingly and voluntarily granted by each of the Borrowers.
3. Challenge to Enforcement. Each Borrower acknowledges and agrees that
such Borrower does not have any defense, set-off, counterclaim or challenge
against the payment of any sums owing under the Credit Agreement, any other Loan
Document, or the Initial Forbearance Agreement, as amended by the First
Amendment and as further amended by this Second Amendment, or the enforcement of
any of the terms or conditions thereof, hereof or under any other Forbearance
Document.
4. Confirmation of Existing Indebtedness. Each Borrower acknowledges
and agrees that as of December 3, 2003: (i) the principal outstanding
Indebtedness due under the Revolving Credit Facility is Five Million Four
Hundred Thirty-Eight Thousand Eight Hundred Eight Dollars and Sixty Cents
($5,438,808.60); and (ii) accrued and unpaid interest on the Indebtedness is One
Thousand Nine Hundred Sixty-Four Dollars and One Cent ($1,964.01), all of which
does not include accrued and unpaid Lenders' Costs and Fees as provided in the
Loan Documents and the Forbearance Documents. There is no Indebtedness
outstanding under the Term Loan Facility.
5. Forbearance. The first sentence of Section 5 of the Initial
Forbearance Agreement and the First Amendment is hereby amended and restated in
its entirety as follows:
Agent and Lenders hereby agree to forbear from exercising the
rights and remedies available to them as a result of the
Forbearance Defaults, during the forbearance term which shall
expire on the earlier of: (i) the occurrence of an Event of
Default (other than the Forbearance Defaults) under any Loan
Document; (ii) the occurrence of a Default hereunder; or (iii)
March 31, 2004 (the "Forbearance Period").
6. Forbearance Agreements and Undertakings. In consideration of, and as
a condition precedent to, the agreement of Agent and Lenders to forbear the
exercise of their rights as set forth in Section 5 hereof and to reinstate as of
October 31, 2003 and to extend the Forbearance Period to March 31, 2004, and in
express reliance thereon, Borrowers covenant and agree that in addition to those
items set forth in Section 6 of the Initial Forbearance Agreement, and Section 6
of the First Amendment:
6.1 Additional Subordinated Debt. Borrowers shall have received
fully funded additional subordinated debt from TDH III, L.P. ("TDH"), LVIR
Investor Group, LP ("LVIR") and Xxxxxx X. Xxxxx ("Xxxxx", and together with TDH
and LVIR, the "Creditors") in an amount of no less than Five Hundred Thousand
($500,000) Dollars, to be fully subordinated to the Indebtedness to the Lenders
(the "Additional Creditor Subordinated Debt", and together with all other
indebtedness of the Borrowers to Creditors and any of their respective
Affiliates, collectively, the "Creditor Subordinated Debt"), upon such terms and
conditions as are acceptable to the Agent and the Lenders; provided, however,
that the Lenders acknowledge and agree that the Additional Creditor Subordinated
Debt, and only the Additional Creditor Subordinated Debt, may be secured by the
Collateral held by the Lenders, so long as the liens to be granted to Creditors
are fully subordinate to the liens of the Lenders, upon such terms and
conditions are acceptable to the Lenders;
6.2 Extension of Term of Creditor Subordinated Debt. Borrowers shall
have produced evidence in form and substance acceptable to the Agent and Lenders
that no portion of the Creditor Subordinated Debt shall be due and payable prior
to April 30, 2004, except as provided therein;
6.3 Exercise of Warrant by Creditors. Creditors shall have exercised
their Warrants to acquire Eight Million Four Hundred Thousand (8,400,000) Shares
of common stock of ImageMax of Delaware, Inc., and by the execution and deliver
hereof of this Second Amendment by the Borrowers, the Borrowers represent and
warrant that: (i) such shares have in fact been issued to the Creditors; (ii)
upon the issuance of the such shares, Creditors own beneficially and of record
no less than fifty-one (51%) percent of the issued and outstanding capital and
voting stock of ImageMax, Inc., which in turn owns all of the issued and
outstanding capital stock of ImageMax of Delaware, Inc.; and (iii) X.X. Xxxxxxx
has become, and so long as any of the Indebtedness remains outstanding or
unpaid, or any of the Obligations unperformed, shall remain as the Chief
Executive Officer and Chairman of the Board of Directors of ImageMax, Inc.;
6.4 Forbearance Fee. In addition to the Initial Forbearance Fee
required under the Initial Forbearance Agreement and the Supplemental
Forbearance Fee required under the First Amendment, and as a condition precedent
to the further extension of the Forbearance Period and to otherwise perform
hereunder, Borrower's shall pay to Agent upon the execution hereof, ratably for
the benefit of the Lenders, a further supplemental forbearance fee in the amount
of Seven Thousand Five Hundred ($7,500) Dollars (the "Further Supplemental
Forbearance Fee");
6.5 Lenders' Costs. As a condition precedent to the agreement of the
Agent and the Lenders to extend the Forbearance Period and to otherwise perform
hereunder, and under the other Loan Documents, the Initial Forbearance
Agreement, as amended by the First Amendment, and as further amended by this
Second Amendment, Borrowers shall jointly and severally pay upon the execution
hereof all accrued and unpaid Lenders' Costs consisting of all accrued and
unpaid counsel fees and expenses, as of the date hereof, of Xxxxxxxx Xxxxxxxx
Xxxxx & Xxxxx LLP, Lenders' and Agent's counsel, through December 3, 2003 in the
amount of Thirty Seven Thousand Five Hundred Dollars ($37,500), and upon the
presentation of all future statements pay any and all additional Lenders' Costs
including, but not limited to counsel fees and expenses;
7. Amendment to Credit Agreement.
7.1 Definition of Collateral. The definition of Collateral is hereby
amended and restated in its entirety as follows:
"Collateral" means Collateral, as defined in the Security Agreement,
Pledged Securities, as defined in the Pledge Agreement, and Mortgaged
Property, as defined in the Mortgage and Security Agreement dated as of
September 16, 2003 by ImageMax, Inc. in favor of Agent for the ratable
benefit of the Lenders.
7.2 Maximum Available Credit. Paragraph 2.1.4 of the Credit
Agreement, as amended and restated in the First Amendment to Amended and
Restated Credit Agreement and again amended and restated in the Second Amendment
to Amended and Restated Credit Agreement is hereby again amended and restated in
its entirety as follows:
2.1.4 Maximum Available Credit. The outstanding principal balance of
the Revolving Credit Facility shall not exceed, at any time, the lesser
of: (i) Five Million Five Hundred Forty Thousand ($5,540,000) Dollars;
or (ii) the sum of (a) Ninety (90%) Percent of Borrowers' Insured
Eligible Accounts Receivable; (b) Eighty (80%) Percent of Borrowers'
Eligible Accounts Receivable, exclusive of Insured Eligible Accounts
Receivable (or such lesser percentage as the Agent in its sole and
absolute discretion (exercised in good faith in its reasonable
judgment), may determine) less an amount equal to the aggregate amount
of trade payables of any of the Borrowers due to Minolta Corporation
and Canon USA, Inc., and any of their respective Affiliates, and (c)
Fifty (50%) Percent of Borrower's uninsured accounts receivable, but in
the aggregate not in excess of Five Hundred Thousand ($500,000)
Dollars, which are in excess of ninety (90) days from the date of the
billing thereof, but in all other respects comport to the definition of
Eligible Accounts Receivables of the Borrower, all determined in
accordance with the last prevailing Borrowing Base Certificate
delivered to Agent Bank in the form of Schedule 2.1.4 of the Amended
and Restated Credit Agreement (the "Maximum Available Revolving
Credit"). Borrowers jointly and severally agree to immediately repay,
without notice or demand, any principal balance of the Revolving Credit
Facility in excess of the Maximum Available Revolving Credit. Unless
Agent or the Lenders shall request more frequently, Borrowers shall
submit to the Agent no less frequently than once a month, a Borrowing
Base Certificate.
7.3 Failure to Comply With Amended Section 2.1.4. Notwithstanding
any other provision of the Initial Forbearance Agreement, the First Amendment or
this Second Amendment, Borrower's failure to comply with Section 2.1.4 of the
Credit Agreement, as amended above, shall not be a Forbearance Default but shall
be an Event of Default, as defined in the Credit Agreement.
8. Cross Default. Notwithstanding anything to the contrary contained
herein or in any other Forbearance Document, the failure of Borrowers to fully
perform hereunder or under any other Forbearance Document, or a breach of a
representation and warranty hereunder or under any other Forbearance Document
shall constitute an Event of Default under the Credit Agreement and each other
Loan Document, and, following the occurrence of any such Event of Default, Agent
and Lenders may, at their option and without further notice to Borrowers,
exercise any and all rights available to Agent and Lenders hereunder, under any
other Forbearance Document, under the Credit Agreement, under any other Loan
Document, at law, in equity or otherwise.
9. Additional Documents and Future Actions. Borrowers will, at their
sole cost, take such actions and provide Agent from time to time with such
agreements, instruments, documents or information as Agent may, in Agent's
discretion, deem necessary or advisable to perfect, protect, maintain or enforce
the security interests in the Collateral or to carry out the terms of the Credit
Agreement, the other Loan Documents, the Initial Forbearance Agreement, the
First Amendment, this Second Amendment, and the other Forbearance Documents.
Borrowers hereby authorize and appoint Agents as Borrowers' attorney-in-fact,
with full power of substitution, to take such actions as Agent may deem
advisable to maintain and protect a continuously perfected security interest of
Lenders in the Collateral, and to execute on Borrowers' behalf such other
documents and notices as Agent may deem advisable to protect the Collateral and
the interests therein and the rights thereunder of Agent and Lenders. Such power
being coupled with an interest is irrevocable.
10. Representations and Warranties. In consideration of the forbearance
extended herein by Agent and Lenders, each Borrower hereby represents and
warrants, which representations and warranties shall survive until all
Obligations of the Borrowers to Agent and Lenders are paid, performed and
satisfied in full, as follows:
10.1 Except as disclosed on Schedule 10.1 hereof, all
representations and warranties of each Borrower set forth in the Credit
Agreement, each other Loan Document and the Initial Forbearance Agreement and
the First Amendment are true and complete as of the date hereof, except as such
representations and warranties may have been affected by the Forbearance
Defaults;
10.2 Except as disclosed on Schedule 10.1 hereof with respect to the
representations and warranties of the Borrowers, no condition or event exists or
has occurred which would constitute an Event of Default under the Loan Documents
(or would, upon the giving of notice or the passage of time, or both constitute
an event of default) other than the Forbearance Defaults;
10.3 The execution and delivery of this Second Amendment and each of
the other Forbearance Documents by each Borrower and all documents and
agreements to be executed and delivered in connection herewith or therewith: (i)
have been duly authorized by all requisite corporate action by such Borrower;
(ii) will not conflict with or result in the breach of or constitute a default
(upon the passage of time, delivery of notice or both) under such Borrower's
certificate or articles of incorporation, by-laws, any applicable statute, law,
rule, regulation or ordinance or any indenture, mortgage, loan or other document
or agreement to which such Borrower is a party or by which it or its property is
bound or affected; and (iii) will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of such Borrower, except liens in favor of Agent for the
ratable benefit of Lenders; and
10.4 Upon the execution and delivery of this Second Amendment and
the other Forbearance Documents, this Second Amendment and each other
Forbearance Document shall be the legally binding obligations of such Borrower
enforceable against such Borrower in accordance with the respective provisions
hereof and thereof, except to the extent enforceability is limited by bankruptcy
and other similar laws affecting creditor's rights generally.
11. Certain Fees, Costs and Expenses. In addition to the payment of the
Supplemental Fee, and the Additional Supplemental Forbearance Fee, Borrowers
will pay all of expenses of Agent and Lenders in connection with the
preparation, negotiation, documentation and closing of this Second Amendment and
each other Forbearance Document, and the consummation of the transactions
contemplated hereunder, including, without limitation, fees, disbursements,
expenses, appraisal costs and fees and expenses of counsel retained by Bank and
all fees related to filings, recording of documents and searches, whether or not
the transactions contemplated hereunder are consummated. Nothing contained
herein shall limit in any manner whatsoever the right of Agent and Lenders to
reimbursement under any of the Forbearance Documents.
12. Defaults. Occurrence of any one or more of the following shall
constitute a default hereunder and under each of the Forbearance Documents:
12.1 The occurrence of an Event of Default or Default (as defined in
the Credit Agreement) (other than the Forbearance Defaults) under the Credit
Agreement or any other Loan Document, hereunder or under any other Forbearance
Document, or any event which, with the giving of notice or passage of time or
both, would constitute a Default hereunder, or an Event of Default thereunder;
12.2 The failure of Borrowers to comply with the terms hereof or
under any of the other Forbearance Documents; or
12.3 Subject to the modifications thereof as set forth in Schedule
10.1 hereof, any representation or warranty of either Borrower in the Credit
Agreement, any other Loan Documents, herein, or any other Forbearance Document,
is untrue in any material respect or any statement, certificate or data
furnished by any Borrower pursuant hereto is untrue in any material respect as
of the date as on which such representation, warranty, statement, certificate or
data is stated or certified.
13. Remedies. At the option of Agent, upon the expiration or earlier
termination of the Forbearance Period, and without further notice or demand,
which notice and demand is expressly waived by each Borrower: (i) the entire
outstanding Obligations shall be immediately due and payable; and/or (ii) Agent
and Lenders may (a) terminate any obligation to forbear hereunder; and (b)
exercise each and every right and remedy hereunder, under any other Forbearance
Document, under any Loan Document, at law, in equity or otherwise.
14. Indemnification. Each Borrower expressly jointly and severally
agrees to defend, indemnify and hold harmless the Agent and the Lenders, and
their respective parents, Subsidiaries, Affiliates, employees, agents, officers
and directors, from and against any losses, penalties, fines, liabilities,
settlements, damages, costs and expenses, suffered by any such Person in
connection with any claim, investigation, litigation or other proceeding
(whether or not the Agent or any Lender is a party thereto) and the prosecution
and defense thereof, including without limitation reasonable attorney's and
consultant's fees, except to the extent that any of the foregoing directly
result from the gross negligence or willful misconduct of the party seeking
indemnification therefor, arising out of or in any way connected with: (i) the
Credit Agreement or any of the other Loan Documents, the Forbearance Agreement
or any of the other Forbearance Documents, or the Loans; (iii) the enforcement,
protection or preservation of the rights of Agent or either Lender under the
Loan Documents, the Forbearance Documents, or any other document or agreement
executed in connection with the Obligations, or any of them; (iii) the validity,
perfection or enforceability of the Loan Documents or the Forbearance Documents;
and (iv) any action or inaction by Agent or any Lender in connection with any of
the foregoing.
15. Waivers. In connection with any proceedings hereunder, under any
other Forbearance Document, the Credit Agreement or any other Loan Document, or
otherwise in connection with any of the Indebtedness or Obligations, including,
without limitation, any action by Agent and Lenders in replevin, foreclosure or
other court process or in connection with any other action related to the
Collateral, each Borrower waives: (i) all errors, defects and imperfections in
such proceedings; (ii) all benefits under any present or future laws exempting
any property, real or personal, or any part of any proceeds thereof from
attachment, levy or sale under execution, or providing for any stay of execution
to be issued on any judgment recovered in connection with the Obligations or in
any replevin or foreclosure proceeding, or otherwise providing for any
valuation, appraisal or exemption; (iii) all rights to inquisition on any real
estate, which real estate may be levied upon pursuant to a judgment obtained in
connection with any of the Obligations and sold upon any writ of execution
issued thereon in whole or in part, in any order desired by Agent; (iv)
presentment for payment, demand, notice of demand, notice of nonpayment, protest
and notice of protest of any of the Obligations; (v) any requirement for bonds,
security or sureties required by statute, court rule or otherwise; (vi) any
demand for possession of any Collateral prior to commencement of any suit; (vii)
any right to require or participate in the marshaling of such Borrower's assets;
(viii) any notice or demand from Agent or Lenders with respect to such
Borrower's obligations under the Loan Documents; (ix) all benefits under present
and future laws permitting termination of such Borrower's Obligations by
delivery of notice or otherwise, other than by performance of all such
Borrower's obligations hereunder and under the Loan Documents and the other
Forbearance Documents; and (x) all rights to claim or recover attorney's fees
and costs in the event that such Borrower is successful in any action to remove,
suspend or prevent the enforcement of a judgment entered by confession.
16. Notices. Any notice or other communication by one party hereto to
the other shall be given in the manner set forth in Section 13.1 of the Credit
Agreement.
17. CONFESSION OF JUDGMENT.
17.1 THE FOLLOWING SETS FORTH A WARRANT OF ATTORNEY TO CONFESS
JUDGMENT AGAINST EACH BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS
JUDGMENT AGAINST EACH BORROWER, SUCH BORROWER, FOLLOWING CONSULTATION WITH (OR
DECISION NOT TO CONSULT WITH) SEPARATE COUNSEL FOR SUCH BORROWER, AND WITH
KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY WAIVES ANY AND ALL RIGHTS SUCH
BORROWER HAS, OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY TO BE HEARD UNDER
THE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA. EACH BORROWER SPECIFICALLY ACKNOWLEDGES THAT AGENT AND LENDERS
HAVE RELIED ON THIS WARRANT OF ATTORNEY IN GRANTING THE FINANCIAL ACCOMMODATIONS
DESCRIBED HEREIN AND IN CONTINUING TO MAKE AVAILABLE THE FINANCIAL
ACCOMMODATIONS DESCRIBED IN THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS.
17.2 EACH BORROWER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY
OF ANY COURT OF RECORD TO APPEAR FOR SUCH BORROWER IN ANY AND ALL ACTIONS, AND
UPON THE OCCURRENCE OF A DEFAULT OR AN EVENT OF DEFAULT TO: (i) ENTER JUDGMENT
AGAINST SUCH BORROWER FOR THE PRINCIPAL SUM DUE UNDER THE INITIAL FORBEARANCE
AGREEMENT AS AMENDED BY THE FIRST AMENDMENT AND FURTHER AMENDED BY THIS SECOND
AMENDMENT, UNDER ANY OF THE OTHER FORBEARANCE DOCUMENTS, THE CREDIT AGREEMENT OR
UNDER ANY OF THE OTHER LOAN DOCUMENTS; OR (ii) SIGN FOR SUCH BORROWER AN
AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS TO
CONFESS JUDGMENT AGAINST SUCH BORROWER FOR ALL OR ANY PART OF THE INDEBTEDNESS;
AND IN EITHER CASE FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE COLLECTION
FEE IN AN AMOUNT NOT IN EXCESS OF TEN (10%) PERCENT OF THE INDEBTEDNESS
OUTSTANDING. EACH BORROWER FURTHER IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND ENTER JUDGMENT AGAINST SUCH
BORROWER AND IN FAVOR OF AGENT AND LENDERS OR ANY HOLDER OF ANY OF THE NOTES
WITH RESPECT TO AN AMICABLE ACTION OF REPLEVIN OR ANY OTHER ACTION WITH RESPECT
TO THE COLLATERAL GRANTED TO AGENT FOR THE RATABLE BENEFIT OF THE LENDERS
PURSUANT TO THE LOAN DOCUMENTS AND THE FORBEARANCE DOCUMENTS. EACH BORROWER
WAIVES ALL RELIEF FROM ANY AND ALL APPRAISEMENT OR EXEMPTION LAWS NOW IN FORCE
OR HEREAFTER ENACTED. IF A COPY OF THIS FORBEARANCE AGREEMENT, VERIFIED BY
AFFIDAVIT OF AN OFFICER OF THE AGENT, ANY LENDER OR ANY OTHER HOLDER OF ANY OF
THE NOTES, SHALL BE FILED IN ANY PROCEEDING OR ACTION WHEREIN JUDGMENT IS TO BE
CONFESSED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL HEREOF AND SUCH
VERIFIED COPY SHALL BE SUFFICIENT WARRANT FOR ANY ATTORNEY OF ANY COURT OF
RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST SUCH BORROWER AS PROVIDED
HEREIN. JUDGMENT MAY BE CONFESSED FROM TIME TO TIME UNDER THE AFORESAID POWERS
WHICH SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF.
18. WAIVER OF RIGHT TO TRIAL BY JURY. EACH BORROWER, AGENT AND LENDERS
WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(i) ARISING UNDER THE INITIAL FORBEARANCE AGREEMENT, AS AMENDED BY THE FIRST
AMENDMENT AND FURTHER AMENDED BY THIS SECOND AMENDMENT, ANY OF THE OTHER
FORBEARANCE DOCUMENTS, OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN OR
DELIVERED IN CONNECTION HEREWITH, OR (ii) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF ANY BORROWER WITH RESPECT TO THIS AGREEMENT,
THE FORBEARANCE DOCUMENTS OR ANY OTHER DOCUMENT OR INSTRUMENT REFERRED TO HEREIN
OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. EACH
BORROWER, AGENT AND LENDERS AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND
THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH BORROWER,
AGENT AND LENDERS TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
EACH BORROWER ACKNOWLEDGES THAT SUCH BORROWER: (a) HAS HAD AN OPPORTUNITY TO
CONSULT WITH COUNSEL REGARDING THIS SECTION; (b) FULLY UNDERSTANDS THE TERMS,
CONTENT AND EFFECT HEREOF; AND (c) VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS
OF THIS SECTION.
19. Miscellaneous. The provisions of Article 13 of the Credit Agreement
are hereby incorporated herein and made a part hereof as if set forth herein in
full. To the extent of any inconsistency between the terms and conditions of the
Forbearance Agreement and the terms and conditions of the Loan Documents, the
terms and conditions of the Forbearance Documents shall prevail.
IN WITNESS WHEREOF, intending to be legally bound hereby, Borrowers,
Agent and Lenders have executed this Forbearance Agreement as an instrument
under seal as of the day and year first above written.
IMAGEMAX, INC.
IMAGEMAX OF DELAWARE, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, CFO of each Borrower
COMMERCE BANK, N.A.
as Agent and Lender
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Senior Vice President
FIRSTRUST BANK, as Lender
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Vice President