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EXHIBIT 10.1
FORBEARANCE AGREEMENT
This Forbearance Agreement (this "FORBEARANCE") is dated as of June 29,
2001, and is entered into by and among VIASOURCE COMMUNICATIONS, INC. (formerly
known as the RTK GROUP, INC.; hereinafter the "BORROWER"), certain Subsidiaries
(as defined in the Credit Agreement, defined below) of the Borrower signatory
hereto (collectively, the "SUBSIDIARIES"), and GENERAL ELECTRIC CAPITAL
CORPORATION (together with its successors and assigns, the "LENDER").
RECITALS:
WHEREAS, Lender and Borrower are parties to that certain Amended and
Restated Credit Agreement dated as of March 10, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "CREDIT AGREEMENT"),
and that certain Borrower Security Agreement dated as of September 7, 1999, as
amended by that certain Amendment No. 1 to Borrower Security Agreement dated as
of March 10, 2000 (as further amended, restated, supplemented or otherwise
modified from time to time, the "SECURITY AGREEMENT"); and
WHEREAS, Lender and Subsidiaries are parties to that certain Subsidiary
Guaranty dated as of September 7, 1999, as ratified and confirmed by that
certain Confirmation of Guaranty dated as of March 10, 2000 (as further amended,
restated, supplemented or otherwise modified from time to time, the "GUARANTY")
guaranteeing all of the Obligations (as defined in the Credit Agreement) of
Borrower to Lender, and that certain Subsidiary Security Agreement dated as of
September 7, 1999, as amended by that certain Amendment No. 1 to Subsidiary
Security Agreement (as further amended, restated, supplemented or otherwise
modified from time to time, the "SUBSIDIARY SECURITY AGREEMENT") granting to
Lender a security interest in all Collateral to secure the Obligations (as
defined in the Credit Agreement) of Borrower to Lender; and
WHEREAS, Lender and Communications Resources Incorporated, a Delaware
corporation and a Subsidiary of Borrower are parties to that certain Pledge
Agreement dated as of September 7, 1999, as amended by that certain Amendment
No. 1 to Pledge Agreement dated as of March 10, 2000 (as further amended,
restated, supplemented or otherwise modified from time to time, the
"COMMUNICATIONS PLEDGE"), pledging all of its stock and other equity interests
in the Pledged Collateral (as defined in the Communications Pledge) to secure
the Obligations (as defined in the Credit Agreement) of Borrower to Lender; and
WHEREAS, Lender and Viasource Holdings, Inc., a Delaware corporation
and a Subsidiary of Borrower are parties to that certain Pledge Agreement dated
as of September 7, 1999, as amended by that certain Amendment No. 1 to Pledge
Agreement dated as of March 10, 2000 (as further amended, restated, supplemented
or otherwise modified from time to time, the "HOLDINGS PLEDGE") pledging all of
its stock and other equity interests in the Pledged Collateral (as defined in
the Holdings Pledge) to secure the Obligations (as defined in the Credit
Agreement) of Borrower to Lender; and
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WHEREAS, as a result of Borrower's failure to perform its Obligations
(as defined therein) under the Credit Agreement, certain Defaults and Events of
Default have occurred and are continuing under the Credit Agreement; and
WHEREAS, Borrower has requested that Lender forbear from the exercise
of its rights and remedies available to it under the Credit Agreement and the
other Loan Documents as a result of the Term Loan Default (as defined below) and
Lender is willing to forbear from enforcing such rights and remedies arising
because of the Term Loan Default, for a limited period of time, and provided
that Borrower and Subsidiaries comply with the terms and conditions of this
Forbearance; and
WHEREAS, the outstanding indebtedness of Borrower to Lender under the
Credit Agreement as of the date hereof totals the sum of (i) the principal
balance of the Term Loan of $14,062,500.00, plus (ii) the principal balance of
the Revolving Loan (including issued and outstanding Letters of Credit) of
$23,795,636.79, plus (iii) interest accrued but unpaid of $1,254,810.72, plus
(iv) costs, expenses and other fees and charges as provided in the Credit
Agreement in the approximate amount of $1,005,000.00 (hereinafter, the sum of
the foregoing amounts shall collectively be referred to as the "INDEBTEDNESS
AMOUNT").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
1.1 All capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement unless
the context clearly requires otherwise.
1.2 The following terms used in this Forbearance shall have the
meanings set forth below:
"CREDIT PARTIES" means the Borrower and its Subsidiaries.
"FORBEARANCE DEFAULT" means (a) the occurrence of any Default or Event
of Default other than the Term Loan Default; (b) the failure of Borrower or any
other Credit Party to comply with any term, condition or covenant set forth in
this Forbearance, (c) any representation made by Borrower under or in connection
with this Forbearance shall prove to be materially false or misleading as of the
date when made, or (d) the filing of any petition (voluntary or involuntary)
under the insolvency or bankruptcy laws of the United States or any state with
respect to Borrower or the other Credit Parties.
"TERMINATION DATE" means the earlier to occur of (a) 5:00 p.m. Eastern
time on July 16, 2001 or (b) the date upon which a Forbearance Default occurs.
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"TERM LOAN DEFAULT" means Borrower's failure to pay the scheduled
mandatory prepayment due June 25, 2001 in the amount of $468,750.00 with respect
to the Term Loan (the "JUNE TERM LOAN PAYMENT") pursuant to Section 2.4(e) of
the Credit Agreement.
SECTION 2. AGREEMENT TO FORBEAR
2.1 Provided that no Forbearance Default occurs, Lender hereby agrees
to refrain, through the Termination Date, from exercising any of its rights and
remedies under the Credit Agreement or any of the other Loan Documents that may
exist by virtue of the Term Loan Default.
2.2 Nothing in this Forbearance shall be construed as a waiver of or
acquiescence to any other Default or Event of Default which shall continue in
existence subject only to the agreement of Lender, as set forth herein, not to
enforce its remedies for a limited period of time with respect to the Term Loan
Default. Except as expressly provided herein, the execution and delivery of this
Forbearance shall not: (a) constitute an extension, modification, or waiver of
any aspect of the Credit Agreement or the other Loan Documents; (b) extend the
terms of the Credit Agreement or the due date of any of the Obligations
thereunder or in any other Loan Document; (c) give rise to any obligation on the
part of Lender to extend, modify or waive any term or condition of the Credit
Agreement or any of the other Loan Documents; or (d) give rise to any defenses
or counterclaims to the right of Lender to compel payment of the Obligations or
to otherwise enforce its rights and remedies under the Credit Agreement and the
other Loan Documents. Except as expressly limited herein, Lender hereby
expressly reserves all of its rights and remedies under the Loan Documents and
under applicable law with respect to the Term Loan Default. From and after the
Termination Date, Lender shall be entitled to enforce the Loan Documents
according to the original terms thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In consideration of the limited agreement of Lender to forbear from the
exercise of its rights and remedies as set forth above, the Credit Parties
hereby represent and warrant to Lender as of the date hereof as follows:
3.1 The execution, delivery and performance of this Forbearance by the
Credit Parties are within their corporate, limited liability or partnership, as
the case may be, powers and the same has been duly authorized by all necessary
corporate, limited liability or partnership, as the case may be, actions, and
this Forbearance constitutes a valid and legally binding agreement enforceable
against the Credit Parties in accordance with its terms.
3.2 All Loan Documents (as the same may be amended, restated,
supplemented or otherwise modified from time to time) including, without
limitation, the Credit Agreement, the Security Agreement, the Guaranty, the
Subsidiary Security Agreement, the Communications Pledge and the Holdings
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Pledge, constitute valid and legally binding obligations of the Credit Parties
enforceable against the Credit Parties in accordance with the terms thereof and
as amended hereby.
SECTION 4. COVENANTS AND AGREEMENTS
In order to induce Lender to forbear from the exercise of its rights
and remedies as set forth above, Borrower (on behalf of itself and each other
Credit Party) hereby covenants and agrees with Lender as follows, and, unless
otherwise indicated, such covenants and agreements shall expressly survive the
Termination Date hereof:
4.1 Borrower and the other Credit Parties acknowledge and agree that
the Term Loan Default has occurred and is continuing and shall not be deemed to
be waived, cured or eliminated by this Forbearance. Borrower agrees that Lender
shall not be required to issue any notices otherwise required by the Credit
Agreement or the Loan Documents with respect to the Term Loan Default during the
term of this Forbearance.
4.2 Borrower agrees to pay the June Term Loan Payment in full to Lender
on July 16, 2001.
4.3 Borrower and the other Credit Parties shall, upon reasonable notice
from Lender, make their officers and other management personnel available for
meetings with Lender and Lender's agents, including, without limitation, any
auditors, consultants, appraisers, investment bankers or other professionals
engaged by Lender to analyze the financial condition, property and assets and
operations of Borrower and the other Credit Parties. Borrower acknowledges and
agrees that all fees, costs and expenses incurred by Lender in connection with
the engagement of such auditors, consultants, appraisers, investment bankers and
other professionals shall constitute a part of the Obligations that will be
secured by the Collateral and shall be payable upon demand by Lender.
4.4 Commencing July 2, 2001, Borrower agrees to deliver to Lender, in
addition to the financial reporting requirements required under the Credit
Agreement, (a) a rolling thirteen (13) week, weekly cash forecast by line item
for Borrower's and the other Credit Parties' operations (all such forecasts
shall be in form and substance acceptable to Lender), together with a comparison
of actual payments and budgeted line items for the previous week, and (b) a
"flash" report. Borrower shall continue to deliver each of the foregoing reports
to Lender on a weekly basis thereafter.
4.5 Lender agrees to continue to make available to the Borrower
Revolving Advances pursuant to Section 2 of the Credit Agreement, as modified by
this Forbearance. Borrower acknowledges that it shall have no right to borrow
LIBOR Rate Loans under the Credit Agreement and that it shall only be entitled
to request Revolving Advances to be made as Base Rate Loans, provided that the
total outstanding amount of all Revolving Loans (including Letter of Credit
Obligations incurred on behalf of the Borrower or any other Credit Party) in the
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aggregate, shall not exceed Lender's Revolving Commitment of $25,000,000.00, and
shall be subject to satisfaction of the terms and conditions hereunder.
4.6 Borrower shall pay to Lender an additional forbearance fee equal to
fifteen percent (15%) per each $100,000.00 of incremental Revolving Advances
made by Lender or Letter of Credit issuances in favor of Borrower or any other
Credit Party (the "CREDIT FEE"). Each such Credit Fee, upon the making of such
Revolving Advance or issuance of such Letter of Credit, shall be fully earned on
the date upon which the same is advanced or issued, and all Credit Fees, in the
aggregate, shall be due and payable by Borrower to Lender on the earlier to
occur of (a) the Termination Date under the Credit Agreement, or (b) March 31,
2002. In addition to the Credit Fee, Borrower shall, for each $100,000.00 of
incremental Revolving Advances made by Lender or Letter of Credit issued for the
account of Borrower or any other Credit Party, issue to Lender warrants equal to
one percent (1%) of Borrower's common stock (the "FORBEARANCE WARRANTS")
exercisable by Lender for $0.01 per share and upon terms and conditions
substantially similar to that certain Warrant to purchase Common Stock of
Viasource Communications, Inc. in favor of Lender and dated as of September 7,
1999 (the "ORIGINAL WARRANT"). Such Forbearance Warrants shall be issued on the
date on which Lender makes such Revolving Advance or issues such Letter of
Credit and shall be immediately delivered to Lender, PROVIDED, HOWEVER, that
commencing on the thirtieth (30th) day from the date hereof, and on each
thirtieth (30th) day thereafter, through and including the date that is ninety
(90) days from the date hereof, that the Subordinated Capital (as defined below)
is not received by the Borrower, the face value of the Forbearance Warrants
issued after such date shall be increased to an additional one percent (1%) for
each $100,000.00 in incremental Revolving Advances or issuance of any Letter of
Credit, but at no time shall such Forbearance Warrants, in the aggregate, exceed
fifteen percent (15%) of the common stock of the Borrower, and PROVIDED,
FURTHER, that if Borrower has satisfied SECTION 4.7 below and received the
proceeds of such Subordinated Capital, Borrower shall be entitled to cancel any
Forbearance Warrants issued in accordance with this SECTION 4.6 and issue to
Lender a new Forbearance Warrant equal to a flat rate of two percent (2%) of
Borrower's common stock exercisable by Lender for $0.01 per share and upon terms
and conditions substantially similar to the Original Warrant in replacement and
full satisfaction thereof.
4.7 Borrower agrees that on or before September 28, 2001, Borrower
shall have received the proceeds of a subordinated capital investment (the
"SUBORDINATED CAPITAL") in the Borrower by a third party in an amount not less
than $5,000,000.00 on terms and conditions satisfactory to Lender and its
counsel.
4.8 Borrower agrees to engage William S. Mackenzie of Cloyses Partners,
or any other third party mutually satisfactory to Lender and Borrower, as Chief
Restructuring Officer (the "CHIEF RESTRUCTURING OFFICER") with such duties,
responsibilities and job description, for a period of time, and for such fee as
may be mutually acceptable to Borrower and Lender. Upon engagement of such Chief
Restructuring Officer, such Person shall not be discharged without the prior
written consent of Lender. Borrower agrees to cooperate fully, and cause its
officers, employees, accountants, consultants and other agents to cooperate
fully, in furnishing information as and when reasonably requested by Lender or
Chief Restructuring Officer regarding the Collateral and the affairs, finances,
financial condition and business operations of the Credit Parties. Borrower
authorizes Lender and Chief Restructuring Officer to meet and/or have
discussions with any of Borrower's or any Credit Party's officers, employees,
accountants, consultants and other agents from time to time to discuss any
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matters regarding the Collateral and the affairs, finances, financial condition
and business operations of the Credit Parties, and shall direct and authorize
all such persons and entities to fully disclose to Lender and Chief
Restructuring Officer all information reasonably requested by Lender or Chief
Restructuring Officer regarding such Collateral and finances, financial
conditions and business operations of the Credit Parties. Borrower waives and
releases any such officer, employee, accountant, consultant or other agent from
the operation and provisions of any confidentiality agreement with Borrower or
any Credit Party to which such agent is a party so that such agent is not
prohibited from providing information to Lender or Chief Restructuring Officer.
Borrower and the other Credit Parties shall promptly, when and as requested by
Lender or Chief Restructuring Officer, provide Lender and Chief Restructuring
Officer with access to the original books and records of any Credit Party and
permit Lender and Chief Restructuring Officer to make copies thereof.
4.9 Borrower acknowledges that notwithstanding the foregoing or any
other provision herein which may be construed to the contrary, although at this
time, Lender has elected not to charge interest at the default rate set forth in
the Credit Agreement, the Lender reserves the right to do so at any time
including, without limitation, at any time during the period of this Forbearance
or after the termination hereof, which default rate of interest could be charged
retroactively to the date of the Term Loan Default.
4.10 Borrower shall not at any time make any payment on account of any
principal, interest, fees or other charges accrued on any Subordinated
Indebtedness.
4.11 Borrower shall continue to make full and complete disclosure of
all material aspects of its financial condition and business operations of
itself and the other Credit Parties, to Lender.
4.12 On or before July 9, 2001, Borrower shall deliver to Lender or any
other collateral agent that Lender may designate, titles to all vehicles owned
by Borrower or any other Credit Party for perfection purposes pursuant to the
Security Agreement or the Subsidiary Security Agreement, as the case may be.
4.13 Borrower shall continue to perform and observe all terms and
conditions contained in the Loan Documents that are not specifically mentioned
in this Forbearance as an existing Default or Events of Default.
4.14 This Forbearance is intended to be a further accommodation by
Lender to Borrower and the other Credit Parties. In consideration of all such
accommodations, and acknowledging that Lender will be specifically relying on
the following provisions as a material inducement in entering into this
Forbearance, Borrower and each other Credit Party agrees, in addition to and
without limiting any of Lender's other rights or remedies under the Credit
Agreement, other Loan Documents and applicable law, for good and valuable
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consideration provided herein, Borrower and each other Credit Party hereby
release and discharge Lender and its respective agents, servants, employees,
directors, officers, attorneys, accountants, affiliates, representatives,
receivers, trustees, subsidiaries, predecessors, successors and assigns
(collectively, the "RELEASED PARTIES") from all claims, damages, losses,
demands, liabilities, obligations, actions and causes of action whatsoever
(whether arising in contract or in tort, and whether at law or in equity), which
Borrower and each other Credit Party may now have or claim to have against the
Released Parties, whether known or unknown, matured or contingent, liquidated or
unliquidated, arising from, in connection with, or in any way concerning or
relating to the Credit Agreement or other Loan Documents, except acts after the
execution and delivery of this Forbearance. In connection with such release and
discharge, Borrower and each other Credit Party specifically and expressly waive
all claims that Borrower and each other Credit Party does not know or suspect to
exist in its favor at the time of executing this Forbearance. In connection with
a bankruptcy or similar proceeding initiated by or against Borrower or any
Credit Party: (i) Lender will be entitled to immediate relief from the automatic
stay and all other stays and injunctions without further notice, hearing or
order of court so that Lender will be able immediately to exercise all or any of
its rights and remedies in the Loan Agreement, other Loan Documents and
applicable law, including, but not limited to, the commencement and consummation
of a foreclosure on any or all of the Collateral; (ii) Neither Borrower nor any
other Credit Party will seek or support an effort by any other party to obtain
an injunction, judgment or any other type of order staying or delaying Lender
from proceeding with any one or more of its rights or remedies under its Loan
Agreement, other Loan Documents and applicable law; (iii) Neither Borrower nor
any other Credit Party will seek to use Lender's cash collateral over its
objection nor contest any motion, application or other pleadings filed by or on
behalf of Lender in any court of competent jurisdiction seeking enforcement of
the terms of this Section; (iv) Borrower and the other Credit Parties will
cooperate with Lender so that Lender can promptly enforce its rights as set
forth in its Loan Agreement and other Loan Documents; and (v) Neither Borrower
nor any other Credit Party will request or consent to (A) the imposition of any
lien superior to those of Lender in the Collateral under its Loan Agreement and
other Loan Documents, whether pursuant to 11 U.S.C. Section 364 or otherwise or
(B) a "cramdown" of Lender's claims pursuant to 11 U.S.C. Section 1129(b) or (C)
the impairment of Lender's claims, liens, rights under the Loan Agreement and
other Loan Documents, or otherwise affect Lender's rights or any Collateral
under its Loan Agreement and other Loan Documents.
SECTION 5. MISCELLANEOUS
5.1 ACKNOWLEDGMENT OF VALIDITY AND ENFORCEABILITY OF LOAN DOCUMENTS. To
the extent of any inconsistencies between the terms and provisions of this
Forbearance and the terms and provisions of the Loan Agreement and other Loan
Documents, this Forbearance shall govern. In all other respects, the Loan
Agreement and other Loan Documents shall remain in full force and effect. The
Credit Parties expressly acknowledge and agree that the Credit Agreement and
other Loan Documents are valid and enforceable by Lender, and expressly confirm,
ratify and reaffirm that the respective Loan Documents to which each are a
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party, secure the full amount of the Obligations of the Borrower under the
Credit Agreement and other Loan Documents, free and clear of all defenses,
offsets and counterclaims of any kind or nature. Each of the Borrower and the
Credit Parties hereby acknowledge that the Indebtedness Amount set forth in the
recitals hereto represent an estimate of the Obligations owing by Borrower to
Lender under the Credit Agreement and the other Loan Documents as of the date
hereof, and each of the Borrower and Credit Parties further expressly
acknowledge and agree that Lender has a valid, duly perfected and fully
enforceable security interest in and lien against each item of Collateral. The
Credit Parties agree that they shall not dispute the validity or enforceability
of the Credit Agreement and other Loan Documents or any of their obligations
thereunder, or the validity, priority, enforceability or extent of Lender's
security interest in or lien against any item of Collateral.
5.2 EXPENSES. Borrower shall reimburse Lender, upon its demand, for all
fees, costs and expenses (including, but not limited to, reasonable attorneys'
fees, costs and expenses) incurred by Lender in connection with this Forbearance
including, but not limited to, such fees, costs and expenses incurred in
connection with the negotiation, drafting, implementation, administration and
enforcement of this Forbearance.
5.3 CONDITIONS PRECEDENT. This Forbearance shall become effective and
be deemed effective as of the date hereof, upon the occurrence of each of the
following, to the satisfaction of Lender:
(a) This Forbearance shall have been duly executed and
delivered by the Credit Parties; and
(b) Lender shall have received such other documents as Lender
may request.
5.4. AMENDMENTS. No amendment or modification of any provision of this
Forbearance shall be effective without the written agreement of Lender, and no
termination or waiver of any provision of this Forbearance, or consent to any
departure by Credit Parties therefrom, shall in any event be effective without
the written concurrence of Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given.
5.5 DEFAULT WAIVER. Lender's failure, at any time or times hereafter,
to require strict performance by Credit Parties with any provision or term of
this Forbearance shall not waive, affect or diminish any right of Lender
thereafter to demand strict compliance and performance therewith. Any suspension
or waiver by Lender of a current Default or any other Event of Default shall
not, except as may be expressly set forth herein, suspend, waive or affect any
current Default or any other Event of Default, whether the same is prior or
subsequent thereto and whether of the same or of a different kind or character.
None of the undertakings, agreements, warranties, covenants and representations
of Credit Parties contained in this Forbearance, the Credit Agreement or any of
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the other Loan Documents, and no current Default or other Event of Default shall
be deemed to have been suspended or waived by Lender unless such suspension or
waiver is in writing and signed by Lender.
5.6. SOLE BENEFIT OF PARTIES. This Forbearance is solely for the
benefit of the parties hereto and their respective successors and assigns, and
no other person or entity shall have any right, benefit or interest under or
because of the existence of this Forbearance.
5.7 TIME OF THE ESSENCE. Time is of the essence with respect to this
Forbearance.
5.8 SECTION TITLES. The section titles contained in this Forbearance
are included for the sake of convenience only, shall be without substantive
meaning or content of any kind whatsoever, and are not a part of the agreement
between the parties.
5.9 WAIVER BY LENDER. No course of dealing between Credit Parties and
Lender and no delay or omission by Lender in exercising any right or remedy
under this Forbearance or the other Loan Documents or with respect to any
indebtedness shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. All rights and
remedies of Lender are cumulative.
5.10 SUCCESSORS AND ASSIGNS. Lender and Credit Parties shall include
the successors or assigns of those parties, except that Credit Parties shall not
have the right to assign their rights hereunder or any interest herein.
5.11. FURTHER ASSURANCES. From time to time, Credit Parties shall take
such action and execute and deliver to Lender such additional documents,
instruments, certificates and agreements as Lender may reasonably request.
5.12 SEVERABILITY. The provisions of this Forbearance are independent
of and separable from each other, and no such provision shall be affected or
rendered invalid or unenforceable by virtue of the fact that for any reason any
other such provision may be invalid or unenforceable in whole or in part. If any
provision of this Forbearance is prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective in such jurisdiction only to
the extent of such provision or unenforceability, and such prohibition or
unenforceability shall not invalidate the balance of such provision to the
extent it is not prohibited or unenforceable nor render prohibited or
unenforceable such provision in any other jurisdiction.
5.13 ENTIRE AGREEMENT. This Forbearance constitutes the entire
agreement and understanding between the parties hereto with respect to the
transactions contemplated hereby and supersede all prior negotiations,
understandings and agreements between such parties with respect to such
transactions. This Forbearance shall constitute a Loan Document for all
purposes.
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5.14 APPLICABLE LAW. THIS FORBEARANCE AND THE TRANSACTIONS EVIDENCED
HEREBY SHALL, IN ACCORDANCE WITH SECTION 5-401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK, BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT
WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
5.15 CONSENT TO JURISDICTION. CREDIT PARTIES AND LENDER AGREE THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THE LOAN DOCUMENTS MAY BE
COMMENCED IN ANY COURT OF THE STATE OF NEW YORK FOR THE CITY AND COUNTY OF NEW
YORK, OR IN THE DISTRICT COURT FOR THE CITY AND COUNTY OF NEW YORK, AND CREDIT
PARTIES WAIVE PERSONAL SERVICE OF PROCESS AND AGREE THAT A SUMMONS AND COMPLAINT
COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED
AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL
TO CREDIT PARTIES, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF NEW YORK
OR THE UNITED STATES.
5.16 JURY TRIAL WAIVER. CREDIT PARTIES AND LENDER HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT TO TRAIL BY JURY CREDIT PARTIES OR LENDER MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO. CREDIT PARTIES REPRESENT AND WARRANT THAT NO
REPRESENTATIVE OR AGENT OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY
TRIAL WAIVER. CREDIT PARTIES ACKNOWLEDGE THAT LENDER HAS BEEN INDUCED TO ENTER
INTO THIS FORBEARANCE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
5.17 WAIVER OF BOND. CREDIT PARTIES WAIVE THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF LENDER IN CONNECTION WITH ANY JUDICIAL PROCESS OR
PROCEEDING OR TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
LENDER OR TO ENFORCE BY SPECIFIC PERFORMANCE, ANY TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, OR THIS FORBEARANCE.
5.18 CONSULTATION WITH COUNSEL. CREDIT PARTIES REPRESENT TO LENDER THAT
THEY HAVE DISCUSSED THIS FORBEARANCE WITH THEIR COUNSEL.
5.19 COUNTERPARTS. This Forbearance may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of this Forbearance by facsimile transmission shall be as effective
as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Forbearance to
be executed as of the date first set forth above, by their respective duly
authorized officers.
BORROWER: VIASOURCE COMMUNICATIONS, INC.,
a New Jersey corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
SUBSIDIARIES: VIASOURCE HOLDINGS, INC., a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
COMMUNICATIONS RESOURCES
INCORPORATED, a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
TELECRAFTER ACQUISITION CORP.,
a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
RTK CORPORATION, a New Jersey corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
QUEENS CABLE CONTRACTORS, INC.,
a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
CRI OF CHERRY HILL, INC., a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
PC NETWORK SOLUTIONS, INC.,
a Delaware corporation
By: /s/ CRAIG A. RUSSEY
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Craig A. Russey, President
LENDER: GENERAL ELECTRIC CAPITAL CORPORATION
By:/s/ STEPHEN W. HIPP
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Stephen W. Hipp, Authorized Signatory
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