Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law. (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults. (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders. (d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement. (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 5 contracts
Sources: Forbearance Agreement (McLeodusa Inc), Forbearance Agreement (McLeodusa Inc), Forbearance Agreement (McLeodusa Inc)
Forbearance. (a) The Participant Lenders Parties agree and acknowledge that until if the expiration Restructuring Transactions have not been consummated prior to July 15, 2016, in order to consummate the Restructuring Transactions, SAE will not make the interest payment due to be paid on July 15, 2016 under the terms of the Forbearance PeriodNotes Indenture and will instead enter into the 30 day grace period with respect to such payment as permitted by the Notes Indenture.
(b) For so long as the Termination Date has not occurred, the Participant Lenders will temporarily forbear (and subject to the terms hereoflimitations provided in clause (c) below, each Supporting Holder (severally and not jointly), agrees until August 15, 2016:
(i) to forbear from the exercise of their default-related any rights and remedies under against SAE to which the Credit Agreements, Loan Documents Supporting Holders or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions Indenture Trustee are or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance may become entitled as a result of any Default or Event of Default; provided further that Default (each as defined in the agreement of Existing Notes Indenture) arising or existing under the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief Existing Notes Indenture in respect of adequate protection SAE’s failure to make the interest payment on July 15, 2016 and decision to enter into the grace period in respect thereof (the “Potential Default”);
(ii) to refrain from exercising any right and remedy that may become available to it under the Existing Notes Indenture by reason of the Potential Default (other than, in the case of the Indenture Trustee, ordinary course acts which it may take under the Existing Notes Indenture which would not adversely affect any other Party); and
(iii) to refrain from initiating, joining in, or relief encouraging in any way an instruction or direction from any stay imposed under such law.
(b) Upon a Termination Event, Noteholder to the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Indenture Trustee to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Existing Notes Indenture in connection with any or all of the Defaults and Events of Potential Default, including, without limitation, the Specified Defaults.
(c) For so long as the avoidance Termination Date has not occurred, SAE on behalf of doubtitself and the guarantors party to the Existing Notes Indenture, nothing herein limits the right agrees not to make any payment to any Noteholder in respect of the Administrative Agent or interest payment due on July 15, 2016 prior to the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes expiration of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersapplicable grace period.
(d) Execution of Nothing contained in this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatSection 3 shall impair, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower impede or otherwise prevent any Supporting Holder or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear Indenture Trustee from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all any rights and remedies that the Administrative Agent and the Lenders now against SAE in respect of any other Default or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Event of Default (including without limitation arising under the Specified Defaults)Existing Notes Indenture or taking any other action available to it by reason of such a Default or Event of Default.
Appears in 4 contracts
Sources: First Supplemental Indenture (SAExploration Holdings, Inc.), Security Agreement (SAExploration Holdings, Inc.), Credit and Security Agreement (SAExploration Holdings, Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration All rights and remedies of the Forbearance PeriodIndenture Trustee and the Noteholders in connection with the Section 4.06 Default, the Participant Lenders will temporarily forbear Acknowledged Event of Default, and the occurrence of any of the matters listed on the attached Schedule 1 entitled “Non-Termination Events” (subject the “Non-Termination Events”) are hereby reserved, and nothing set forth herein or contemplated hereby is intended to be, nor shall be construed as, a waiver or acquiescence to the terms hereof) Section 4.06 Default, the Acknowledged Event of Default, the Non-Termination Events, or any other current or future Default under the Indenture nor constitute or be construed as an agreement by the Indenture Trustee or the Noteholders to forbear from the exercise of their default-related any rights and remedies available to them under the Credit Agreements, Loan Documents Indenture or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable laware hereby expressly reserved; provided, includinghowever, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitationthat except as otherwise specifically provided herein, the Specified Defaults.
(c) For Indenture Trustee and the avoidance of doubtNoteholders shall, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies issuing (i) a Notice of Acceleration with respect to the Specified Defaults Acknowledged Event of Default or (ii) a Notice of Acceleration or a Notice of Default with respect to any of the Non-Termination Events, and shall not constitute a waiver comply with the restrictions on the prosecution of such Specified Defaults the claims asserted in the Delaware Action as provided for in this Agreement; and provided, further, that the Lenders expressly reserve all rights and remedies that the Administrative Agent Indenture Trustee and the Lenders now or may in the future have under Noteholders shall be free to exercise any or all of their rights and remedies arising under the Loan Documents and/or applicable law in connection Indenture with all Defaults regard to the Section 4.06 Default, the Acknowledged Event of Default, and the Non-Termination Events of Default (including without limitation at any time after the Specified Defaults)Forbearance Termination Date.
Appears in 2 contracts
Sources: Forbearance Agreement, Forbearance Agreement (Tropicana Finance Corp)
Forbearance. (a) The Participant Lenders agree that until Each Obligor specifically acknowledges the expiration existence and continuation of the Forbearance PeriodSpecified Defaults. In reliance on the representations, the Participant Lenders will temporarily forbear (warranties, covenants and agreements contained in this Agreement, and subject to the terms hereof) from satisfaction of each condition precedent set forth in Section 4 hereof but only so long as no Termination Event shall have occurred and except as permitted by this Agreement, the exercise of their default-related remedies under Agent, the Credit Agreements, Loan Documents or otherwise, against the Borrower Lenders and the Subsidiary Guarantors solely Issuing Banks hereby agree to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply forbear during the Forbearance Period with from exercising their rights and remedies under the Loan Documents (including any right under Section 2.2.3 or 2.3.3 of the Loan Agreement, any right of setoff (excluding the Agent’s right to charge on account under Section 4.1.1(b) of the Loan Agreement, it being understood and agreed that any deemed making of any representations and warranties by the Borrowers on account of such charge shall, if such representations and warranties are not true and correct, for all provisions, limitations, restrictions purposes hereof be treated as a Specified Default) and any right under a power of attorney granted pursuant to Section 8.5(b) of the Loan Agreement) and applicable law arising as a result of the occurrence or prohibitions that would otherwise be effective or applicable under continuance of any of the Loan Documents during Specified Defaults. Notwithstanding the continuance foregoing, the forbearance granted by the Agent, the Lenders and the Issuing Banks shall not constitute and shall not be deemed to constitute a waiver of any of the Specified Defaults or of any other Default or Event of Default; provided further that Default under the Loan Documents. On and after the Termination Date, the Agent’s, the Lenders’ and the Issuing Banks’ agreement of the Participant Lenders temporarily hereunder to forbear shall not apply to nor preclude terminate automatically without further act or action by the Agent, any remedy available to Lender or any Issuing Bank, and the Administrative Agent or Agent, the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Issuing Banks shall be entitled to exercise any and all of their respective rights and remedies available to them under this Agreement and the other Loan Documents, at law, in equity or otherwise without any further lapse of time, expiration of applicable grace periods or requirements of notice, all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) which are hereby expressly waived by each Obligor. For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the i) an exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatcash dominion rights, notwithstanding anything to the contrary in the Credit Agreementswhen applicable, the Administrative Agent shall not be required subject to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms forbearance (other than implementing cash dominion solely as a result of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults), (ii) the foregoing forbearance shall not prohibit the Agent from delivering notices relating to the Borrowing Base or notices of Default, Event of Default or a Termination Event, (iii) any Overadvance that occurs under Section 2.1.5 of the Loan Agreement shall not be subject to forbearance, and (iv) the foregoing forbearance shall not limit or prohibit the Agent from making Protective Advances in its discretion pursuant to Section 2.1.6 of the Loan Agreement (it being understood and agreed that any deemed making of any representations and warranties by the Borrowers on account of any such making of Protective Advances shall, if such representations and warranties are not true and correct, for all purposes hereof be treated as a Specified Default).
Appears in 2 contracts
Sources: Limited Forbearance Agreement, Limited Forbearance Agreement (Willbros Group, Inc.\NEW\)
Forbearance. (a) The Participant Lenders agree that until During the expiration of the Forbearance Period, the Participant Lenders will Short Term Extension Period Buyer hereby agrees to temporarily forbear (subject to the terms hereof) from the exercise of their exercising any default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Repurchase Agreement solely to the extent the availability of such remedies arises exclusively arise from any Event of Default in existence (whether or not declared) prior to the Specified Defaultsexecution of this Extension Agreement; provided that the Borrower and the Subsidiary Guarantors foregoing shall comply during the Forbearance Period with all provisions, limitations, restrictions not be deemed to limit Buyer’s rights or prohibitions that would otherwise be effective remedies against Seller or applicable under any of the Loan Documents during the continuance of Guarantor arising from any Default or Event of DefaultDefault occurring after the execution of this Extension Agreement or for any breach by Seller or Guarantor under this Extension Agreement; provided further provided, further, that the agreement of the Participant Lenders Buyer temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Buyer in connection with any Act of Insolvency against Seller or Guarantor or other proceeding commenced under any bankruptcy bankruptcy, insolvency or insolvency similar law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event; provided, further, that the agreement of Buyer temporarily to forebear shall not apply to nor preclude any remedy available to Buyer (i) if an Act of Insolvency or other proceeding under any bankruptcy, insolvency or similar law has occurred with respect to any borrower under the Participant Lenders Senior Loan, Senior Mezzanine Loan or Junior Mezzanine Loan or (ii) with respect to any action necessary or advisable in Buyer’s sole determination to avoid or otherwise address an actual or potential material adverse effect on the value of the real estate assets owned by the subsidiaries of the Senior Mezzanine Borrower. Upon the occurrence of the Termination Date, Buyer’s agreement hereunder to forbear from exercising their such default-related remedies shall immediately terminate without the requirement of any further demand, presentment, protest or notice of any kind, all of which Seller hereby waives to the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or fullest extent permitted by applicable law, including, without limitation, their respective rights . Seller acknowledges and agrees that Buyer’s agreement hereunder to forbear from exercising its default-related remedies in connection with respect to the specified Events of Default shall not constitute a waiver of any or all of the Defaults and such Events of Default, including, without limitation, the Specified Defaults.
(c) . For the avoidance of doubt, nothing herein limits the right rights of the Administrative Agent or the LendersBuyer, including during the Forbearance Period, Short Term Extension Period to take any action to preserve or exercise rights or remedies against parties other than the Borrower Seller and the Subsidiary Guarantors Guarantor ("“Third Party Rights"”). For purposes of the foregoing, the Borrower Seller acknowledges and the Subsidiary Guarantors acknowledge and agree agrees that execution and delivery of this Extension Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersBuyer.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 2 contracts
Sources: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders agree that until In consideration of the expiration Credit Parties’ agreement to timely comply with the terms of this Agreement, and in reliance upon the representations, warranties, agreements and covenants of the Credit Parties set forth herein, subject to the satisfaction of each of the conditions precedent to the effectiveness of this Agreement, during the Forbearance Period, the Participant Lenders will temporarily Agent and each Lender (severally and not jointly) hereby agree to forbear (subject to the terms hereof“Forbearance”) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under exercising any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available Rights and Remedies with respect to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveForbearance Defaults. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, each Lender agrees that it (individually or collectively) will not deliver any notice or instruction to take the Agent directing the Agent, in each case, to exercise any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower Rights and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in Remedies under the Credit Agreements, the Administrative Agent shall not be required to act if directed Documents or applicable Law against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Credit Parties with respect to the Specified Defaults Forbearance Defaults. For the avoidance of doubt, this Agreement shall not, except as provided herein, (a) prevent the Lenders from receiving payments of principal and interest when due or (b) limit any other available rights or remedies of the Agent and/or the Lenders. The agreements set forth herein shall not constitute a waiver of such Specified the Forbearance Defaults nor shall it be an agreement to forbearance with regard to any other Defaults or Events of Default that may be continuing on the date hereof, or any Defaults or Events of Default that may occur after the date hereof, whether similar in kind or otherwise to the Forbearance Defaults and that shall not constitute a waiver, express or implied, of any of the Lenders expressly reserve all rights and remedies that of the Administrative Agent and the Lenders now or may in under the future have under any or all terms of the Loan Credit Agreement or any other Credit Documents and/or applicable law in connection with all Defaults and Events on any future occasion or otherwise. The Forbearance set forth herein shall not impose or imply any obligation on the Agent or the Lenders to grant a forbearance of any Event of Default (including without limitation the Specified Defaults)on any future occasion.
Appears in 2 contracts
Sources: Forbearance Agreement (J.Jill, Inc.), Forbearance Agreement (J.Jill, Inc.)
Forbearance. The Loan Parties acknowledge and agree that (a) The Participant Lenders agree that until the expiration Designated Events of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Default have occurred and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower are continuing and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a upon the Forbearance Termination Event, Date (defined below) the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies forbearance provided under this Section 1 shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower Agents and Lenders shall have the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed right to exercise any and all of their respective rights and remedies under any Section 9.01 of the Credit Agreement or all of otherwise under the Loan Documents and/or or under applicable law, including, without limitation, their respective rights law or at equity due to such Designated Events of Default or any other Event of Default that has occurred and remedies in connection with any or all is continuing. The Agents and Lenders hereby agree as of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder date hereof to forbear from exercising their default-related any rights or remedies under Section 9.01 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity with respect to the Specified Defaults shall Designated Events of Default until the earliest of (i) the occurrence of a breach or default under this Agreement, (ii) the occurrence of a Default or Event of Default that does not constitute a waiver Designated Event of such Specified Defaults Default, (iii) the Disposition of all or substantially all of the assets of the Borrower or (iv) the sixth month anniversary of the First Amendment Date (the “Forbearance Termination Date”). The Loan Parties acknowledge and agree that, if any breach or default under this Agreement occurs, or if a Default or Event of Default occurs that does not constitute a Designated Event of Default, in each case after the date hereof, the Forbearance Termination Date shall be deemed to have occurred immediately prior thereto, this Section 1 shall cease to be effective, and the Agents and Lenders expressly reserve shall be entitled to (x) terminate all Commitments under the Credit Agreement and declare all of the Loans then outstanding to be due and payable, whereupon the aggregate principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts payable under the Credit Agreement and the other Loan Documents shall become due and payable immediately, without presentment, demand, protest or further notice of any kind and (y) exercise immediately their rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or and under applicable law in connection with all or at equity. Each Loan Party hereby further acknowledges and agrees that from and after the Forbearance Termination Date, the Agents and Lenders shall be under no obligation of any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Defaults and Events or any other Event of Default (including without limitation whether similar or dissimilar to the Specified DefaultsDesignated Events of Default).
Appears in 2 contracts
Sources: Forbearance Agreement, Forbearance Agreement and Amendment Number One to Credit Agreement (Imperial Petroleum Inc)
Forbearance. (a) The Participant Lenders agree that until the expiration Effective as of the Forbearance PeriodEffective Date (as defined below), the Participant Lenders will temporarily forbear (subject to the terms hereofand conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the exercise occurrence and continuation of their default-related remedies any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
(a) February 11, 2019;
(b) the making of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreements, Loan Documents or otherwise, against Agreement;
(ii) (x) an Event of Default (as defined in the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; provided that and/or
(iii) (x) an Event of Default (as defined in any of the Borrower and Warehouse Facilities) or similar event (in each case, other than arising in connection with the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable Specified Defaults) occurring under any of the Loan Documents during the continuance of Warehouse Facilities or (y) any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall not constitute a waiver cease to be effective;
(d) the failure of such Specified Defaults and that the Lenders expressly reserve Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all rights and remedies that the Administrative Agent and the Lenders now or may material respects (or, in the future have under case of any or representation and warranty qualified by materiality, in all respects) as of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)date when made or deemed made.
Appears in 2 contracts
Sources: Forbearance Agreement (DITECH HOLDING Corp), Forbearance Agreement
Forbearance. (a) The Participant Lenders agree that Following the later of (x) the Agreement Effective Date or (y) the date and time upon which CEC may no longer terminate this Agreement pursuant to Section 11(c), until the expiration termination of the this Agreement (a “Forbearance PeriodTermination Event”), the Participant Lenders will temporarily each Consenting Second Lien Creditor agrees to forbear (subject to the terms hereof) from the exercise of their exercising its default-related rights and remedies (as well as any setoff rights and remedies) under the Credit Agreements, Loan Documents Second Lien Indentures or otherwiseapplicable law, against the Borrower Company and the Subsidiary Guarantors solely CEC and, with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower each, their property and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders interests in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawproperty.
(b) Upon the occurrence of a Forbearance Termination Event, the agreement of the Participant Lenders Consenting Second Lien Creditors hereunder to forbear from exercising their default-related rights and remedies (i) under the Second Lien Indentures and (ii) in respect of the Forbearance Defaults, shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower Caesars Parties hereby waive (to the extent permitted by applicable law).
(c) The Caesars Parties agree that, upon the occurrence of, and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed after the occurrence of, a Forbearance Termination Event, the Consenting Second Lien Creditors, the Trustees or the Collateral Agent, as applicable, may proceed, subject to the terms of the Second Lien Indentures, and applicable law, to exercise any and or all of their respective rights and remedies under any or all of the Loan Documents and/or Second Lien Indentures, applicable law, including, without limitation, their respective rights and remedies and/or in connection with any or all of the Defaults and Events of Defaultequity, including, without limitation, the Specified rights and remedies on account of the Forbearance Defaults, all of which rights and remedies are fully reserved.
(cd) The Caesars Parties agree that, prior to the termination of this Agreement with respect to any particular Consenting Second Lien Creditor, the Caesars Parties shall not commence any litigation or interpose or join in any claim arising from or in any way related to the Second Lien Indentures, the Second ▇▇▇▇ ▇▇▇▇ Claims, the Company, CEC, CAC, or any of their respective Affiliates against any such Consenting Second Lien Creditor. The Consenting Second Lien Creditors and the Second Lien Committee agree that, prior to the termination of this Agreement with respect to any particular Caesars Party, the Consenting Second Lien Creditors and the Second Lien Committee shall not commence any litigation or interpose or join in any claim arising from or in any way relating to the Second Lien Indentures against any such Caesars Party.
(e) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingnotwithstanding anything herein, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of forbearance set forth in this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Section 3 shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(ei) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies constitute a waiver with respect to any defaults or any Events of Defaults as defined under the Specified Defaults shall Second Lien Indentures, (ii) prevent any Consenting Second Lien Creditor or Second Lien Committee Member from enforcing its rights with respect to any non-Caesars Parties under any documents relating to the Second Lien Indentures, including, but not constitute limited to and for the avoidance of doubt, any intercreditor documents, and (iii) bar any Consenting Second Lien Creditor or Second Lien Committee Member from filing a waiver proof of claim or taking action to establish the amount of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Claim.
Appears in 2 contracts
Sources: Restructuring Support, Forbearance, and Settlement Agreement (Caesars Acquisition Co), Restructuring Support, Forbearance, and Settlement Agreement (CAESARS ENTERTAINMENT Corp)
Forbearance. (a) The Participant Lenders Effective as of the Third Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Third Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Third Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Third Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Third Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) November 1, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Third Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Third Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Third Amended Forbearance Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Third Amended Forbearance Agreement) under the DDJ Third Amended Forbearance Agreement or any amendment or modification to the DDJ Third Amended Forbearance Agreement; (D) termination of the DDJ Third Amended Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Third Amended Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the ▇▇▇▇▇▇ Engagement Letter or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay ▇▇▇▇▇▇’▇ fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
the ▇▇▇▇▇▇ Engagement Letter; (eG) The Borrower and the Subsidiary Guarantors acknowledge and agree occurrence of any Event of Default that is not a Specified Existing Default; (H) the agreement failure of the Participant Lenders hereunder Company to forbear from exercising their default-related remedies comply with respect any term, condition, covenant or agreement set forth in this Third Amended Forbearance Agreement; (I) the failure of any representation or warranty made by the Company under this Third Amended Forbearance Agreement to the Specified Defaults shall not constitute a waiver of such Specified Defaults be true and that the Lenders expressly reserve correct in all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all material respects as of the Loan Documents and/or applicable law in connection with all Defaults and Events date when made; (J) the commencement by or against the Company or any of the Subsidiaries of a case under title 11 of the United States Code; or (K) the commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or the Subsidiaries. Any Forbearance Default shall constitute an immediate Event of Default (including without limitation under the Specified Defaults)Indenture.
Appears in 2 contracts
Sources: Forbearance Agreement, Forbearance Agreement (Wornick CO)
Forbearance. (a) The Participant Lenders agree that until Subject to the expiration satisfaction of the conditions precedent in Section 5, for the period (hereinafter referred to as the “Forbearance Period”) beginning on the Effective Date and ending on the Forbearance Termination Date defined in Section 4(b), the Participant Lenders will temporarily Agent and Lenders, without waiving, curing or affecting the Stated Defaults, hereby agree to forbear (subject to the terms hereof) from the exercise of any of their default-related rights and remedies available under the Credit Agreements, Loan Agreement and other Loan Documents or otherwise, against on account of the Borrower Stated Defaults. The Agent’s and the Subsidiary Guarantors solely Lenders’ forbearance provided for herein shall be effective only with respect to the extent the availability of such remedies arises exclusively from the Specified Stated Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a The Forbearance Period will terminate upon the earlier to occur of the following (the “Forbearance Termination Date”):
(i) November 1, 2009, at 5:00 p.m. (California time), or
(ii) the occurrence of any other Forbearance Termination Event.
(c) During the Forbearance Period and provided no Forbearance Termination Event has occurred, and further provided that the terms and conditions of this Agreement are satisfied, the agreement Agent and Lenders agree that they will not exercise any default remedies against the Borrower or the Guarantors (except as otherwise expressly provided in this Agreement) as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Stated Defaults.
(d) On the requirement of any demand, presentment, protest or notice of any kindForbearance Termination Date, all of which forbearances, deferrals and indulgences granted by the Borrower Agent and Lenders in this Section 4 shall automatically terminate, and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed shall thereupon be entitled immediately to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawDocuments, this Agreement and otherwise available at law or in equity, including, without limitation, their respective rights publishing a notice of default under the Deed of Trust and remedies in connection with any foreclosing on the Property, and all other Collateral, all without further notice or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making demand of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementkind.
(e) The Borrower Parties understand and the Subsidiary Guarantors specifically acknowledge and agree that the agreement forbearance provided in this Agreement does not relate or extend to any actions that the Agent or Lenders may take under the Loan Documents, at law or in equity, to preserve and protect any of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may collateral described in the future have under any or all of the Loan Documents and/or applicable law or the interests of the Agent or Lenders in connection with all Defaults any such collateral, including, without limiting the generality of the foregoing (i) the defending of or intervention in actions or assertions of claims (such as foreclosure proceedings, mechanics’ liens filings or proceedings, and Events stop notices) brought or made by third parties or by any Borrower Party, relating to any such collateral or the interests of Default the Agent or Lenders, or (including ii) the sending of notices to any persons or entities concerning (A) the rights of the Agent or Lenders under the Loan Documents (including, without limitation limitation, the Specified Defaults)filing of a proof of claim in any bankruptcy proceeding) and (B) the existence of security interests or liens in favor of the Agent or Lenders relating to such collateral.
(f) [Intentionally Omitted.]
(g) Notwithstanding anything to the contrary herein or in the Loan Documents, from and after the Effective Date neither Agent nor Lenders shall have any obligation to make Loans or any other advances under the Loan Documents.
Appears in 2 contracts
Sources: Forbearance Agreement (California Coastal Communities Inc), Forbearance Agreement (California Coastal Communities Inc)
Forbearance. (a) The Participant Lenders agree that until the expiration Holder shall not be deemed to have waived any of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related Holder’s rights or remedies under the Credit Agreementsthis Note unless such waiver is express and in a writing signed by H▇▇▇▇▇, Loan Documents and no delay or otherwiseomission by H▇▇▇▇▇ in exercising, against the Borrower and the Subsidiary Guarantors solely or failure by Holder on any one or more occasions to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsexercise, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of Holder’s rights hereunder or under the other Loan Documents during the continuance of any Default Documents, or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent at law or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawequity, including, without limitation, their respective rights Holder’s right, after any Event of Default, to declare the entire indebtedness evidenced hereby immediately due and payable, shall be construed as a novation of this Note or shall operate as a waiver or prevent the subsequent exercise of any or all of such rights. Acceptance by H▇▇▇▇▇ of any portion or all of any sum payable hereunder whether before, on or after the due date of such payment, shall not be a waiver of Holder’s right either to require prompt payment when due of all other sums payable hereunder or to exercise any of Holder’s rights, powers and remedies in connection hereunder or under the other Loan Documents. A waiver of any right on one occasion shall not be construed as a waiver of H▇▇▇▇▇’s right to insist thereafter upon strict compliance with the terms hereof without previous notice of such intention being given to Borrower. No exercise of any right by Holder shall constitute or be deemed to constitute an election of remedies by H▇▇▇▇▇ precluding the subsequent exercise by H▇▇▇▇▇ of any or all of the Defaults rights, powers and Events remedies available to it hereunder, under any of Defaultthe other Loan Documents, includingor at law or in equity. Borrower expressly waives, without limitationto the extent permitted by law, the Specified Defaults.
(c) For the avoidance benefit of doubtany statute or rule of law or equity now provided, nothing herein limits the right of the Administrative Agent or the Lenderswhich may hereafter be provided, including during the Forbearance Periodwhich would produce a result contrary to, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of in conflict with, the foregoing, the . Borrower consents to any and the Subsidiary Guarantors acknowledge all renewals and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary extensions in the Credit Agreements, time of payment hereof without in any way affecting the Administrative Agent shall not be required to act if directed against the liability of Borrower or the Subsidiary Guarantors if such action is contrary any person liable or to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies become liable with respect to any indebtedness evidenced hereby. No extension of the Specified Defaults shall not constitute a waiver time for the payment of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders this Note or any installment due hereunder, made by agreement with any person now or may hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in the future have under any whole or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)part, unless H▇▇▇▇▇ agrees otherwise in writing.
Appears in 2 contracts
Sources: Promissory Note (Sanfilippo John B & Son Inc), Promissory Note (Sanfilippo John B & Son Inc)
Forbearance. (a) The Participant Lenders agree Each of the Class A Certificateholders agrees that until the expiration of the Forbearance PeriodPeriod (as defined below), it will not, as part of a majority in interest of Fractional Undivided Interests in the Participant Lenders will temporarily forbear (subject Class A Trust or in any other capacity direct the Class A Trustee, when the Class A Trustee is the Controlling Party or otherwise, to cause the terms hereof) from Subordination Agent and the Mortgagees to exercise any of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Atlas solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided Defaults (the "CLASS A FORBEARANCE"). Each of the Class A Certificateholders further agrees (i) to join in executing and causing to be delivered to the Class A Trustee, with a copy to the Subordination Agent and Mortgagees, at or about the time that a Specified Default occurs, a letter (a "FORBEARANCE INSTRUCTION LETTER") instructing the Borrower Class A Trustee to instruct the Subordination Agent and Mortgagees (an "INSTRUCTION LETTER TO SUBORDINATION AGENT AND MORTGAGEES") to forbear from exercising any default-related remedies until the Subsidiary Guarantors shall comply Subordination Agent or Mortgagees receive instructions to the contrary ("CONTRARY INSTRUCTIONS") from the Class A Trustee, which Forbearance Instruction Letter will instruct the Class A Trustee not to give any such Contrary Instructions during the Forbearance Period with all provisionsunless it is directed to do so by the holders of a majority in interest of Fractional Undivided Interests in the Class A Trust, limitations(ii) to refrain from directing the Class A Trustee to give any such Contrary Instructions during the Forbearance Period, restrictions or prohibitions that would otherwise be effective or applicable under any and (iii) to provide to Atlas a copy of the Loan Documents during Forbearance Instruction Letter (and, if such Class A Certificateholder receives a copy of an Instruction Letter to Subordination Agent and Mortgagees, a copy of such letter) and a return receipt or other evidence indicating the continuance of any Default or Event of Default; provided further that the agreement delivery of the Participant Lenders temporarily Forbearance Instruction Letter to forbear the Class A Trustee, provided that, (w) nothing in the Forbearance Instruction Letter, the Instruction Letter to Subordination Agent and Mortgagees, or in this Agreement is intended to or shall prevent any Mortgagee, Subordination Agent, Class A Trustee, Class A Certificateholder or other person from (A) giving notice of the occurrence of a Default under a Lease or Indenture (it being understood that, except for providing that notice of a Default may be given, this clause (A) does not limit or affect in any way the agreements of the Class A Certificateholders that are set forth above in this Section 2(a), or (B) exercising its right to cause one or more LTV Appraisals to be obtained pursuant to the Intercreditor Agreement, (x) the Class A Certificateholders shall not apply be required to nor preclude obtain any remedy available acknowledgement or agreement from the Class A Trustee with respect to the Administrative Forbearance Instruction Letter and the Class A Trustee shall not be required to obtain any acknowledgement or agreement from the Mortgagees or Subordination Agent with respect to the Instruction Letter to Subordination Agent and Mortgagees, (y) the Class A Certificateholders shall not be required to provide any indemnity or other inducement for the Lenders Class A Trustee, Subordination Agent, or Mortgagees to comply with such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees, and (z) the Class A Certificateholders give no representation or warranty as to the effect of such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees or as to whether the Class A Trustee will in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, fact send such Instruction Letter to any relief in respect of adequate protection or relief from any stay imposed under such lawSubordination Agent and Mortgagees.
(b) Upon Each of the dates and events referred to in clauses (i) through (viii) below in this Section 2(b) is referred to herein as a "TERMINATION EVENT". As used herein, "FORBEARANCE PERIOD" means the period beginning on the date hereof and ending on the earliest to occur of (x) a Termination EventEvent listed in clause (i), (v), or (vii) below in this Section 2(b) (it being understood that no notice is required in order for the Forbearance Period to terminate immediately and automatically upon the occurrence of any Termination Event listed in clause (i), (v), or (vii) below in this Section 2(b)), or (y) the date three (3) business days after any Class A Certificateholder (or such Class A Certificateholder's counsel) gives notice to Atlas that a Termination Event listed in clause (ii), (iii), (iv), (vi) or (viii) of this Section 2(b) has occurred and that, as a result thereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Period shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveend. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Termination Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).are as follows:
Appears in 2 contracts
Sources: Forbearance Agreement (Atlas Air Worldwide Holdings Inc), Forbearance Agreement (Atlas Air Inc)
Forbearance. (a) The Participant Lenders agree that until Upon the expiration satisfaction of the Forbearance Periodconditions precedent set forth in Section 3 of this Agreement and in reliance on the representations, warranties and agreements of the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Issuers and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided herein contained, each Forbearing Holder hereby agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period it will not, directly or indirectly, take any Remedial Action with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any respect to the Notes solely as a result of the Loan Documents Excess Cash Flow Prepayment Default or the failure to pay interest in excess of a rate per annum equal to 14%, provided, however, that interest shall continue to accrue at the Post-Default Rate while the Excess Cash Flow Prepayment Default is continuing. The foregoing limited forbearance shall not be construed to impair the ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the continuance Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of any Default or Event of other than the Excess Cash Flow Prepayment Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately and automatically cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuers and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Indenture and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, Notes (including, without limitation, their respective rights payment of any unpaid accrued interest at the Post-Default Rate) without giving effect to the forbearance set forth herein.
(c) Except for the forbearance to the extent expressly set forth above in subsection 2(a), each Forbearing Holder reserves each and remedies in connection every right and remedy it may have under the Notes, the Indenture, the Security Documents, any agreement relating thereto and under applicable law with any or all of respect to the Defaults and Events of Excess Cash Flow Prepayment Default, including, without limitation, the Specified Defaults.
right to continue to charge and accrue (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including but not collect during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than ) interest at the Borrower Post-Default Rate. The Issuers and the Subsidiary Guarantors ("Third Party Rights"). For purposes each of the foregoing, the Borrower and the Subsidiary Guarantors hereby acknowledge and agree that execution interest at the Post-Default Rate shall accrue from and delivery of this Agreement after November 5, 2012. Nothing herein shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything be deemed to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified Defaults and that any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Lenders Excess Cash Flow Prepayment Default), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Security Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 2 contracts
Sources: Forbearance Agreement (FriendFinder Networks Inc.), Forbearance Agreement (FriendFinder Networks Inc.)
Forbearance. Subject to the terms and conditions set forth herein, Wachovia hereby agrees that, during the Forbearance Period (a) The Participant Lenders agree that until as defined below), Wachovia shall forbear from exercising any and all rights or remedies available to Wachovia under the expiration Repurchase Documents and the Master Agreement as a result of the Forbearance PeriodExisting Events of Default (including, without limitation, the Participant Lenders will temporarily collection of default interest under the Repurchase Documents and Master Agreement), but only to the extent that such rights or remedies arise exclusively as a result of the existence or continuation of the Existing Events of Default; provided, however; (i) that Wachovia shall be free to exercise any or all of Wachovia's rights and remedies (including, without limitation, the collection of default interest under the Repurchase Documents and Swap Documents from and after the occurrence of a Forbearance Termination Event) under the Repurchase Documents, Master Agreement or Applicable Law arising on account of the Existing Events of Default (or any other event of default) at any time upon or after the occurrence of a Forbearance Termination Event (as defined below), (ii) in connection with the Repurchase Documents, Wachovia shall have no obligation to purchase or finance any new Asset or make any advance of Purchase Price or other amounts with respect to any existing Purchased Assets or new Assets unless consented to in writing by Wachovia, which consent may be granted or refused by Wachovia in its sole and absolute discretion, (iii) in connection with the Master Agreement, Wachovia shall have no obligation to enter into a Transaction (as defined in the Master Agreement) unless consented to in writing by Wachovia, which consent may be granted or refused by Wachovia in its sole and absolute discretion, and (iv) no amounts under clause NINTH of Section 2.8 of the Repurchase Agreement shall be transferred to the Operating Account or the Quadra Entities, but, instead, all such amounts shall be applied to the outstanding Obligations under the Repurchase Documents and the obligations and liabilities under the Swap Documents. Wachovia agrees to waive any default interest that accrued prior to the date of this Agreement under the Repurchase Documents and the Master Agreement as a result of the Existing Events of Default. Notwithstanding Wachovia's agreement to forbear (on account of the Existing Events of Default subject to the terms hereof) from and conditions set forth herein, the exercise Existing Events of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Default shall continue to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply exist during the Forbearance Period with for all provisionspurposes under the Repurchase Agreement and Master Agreement, limitations, restrictions or prohibitions that would otherwise be effective or applicable under including any limitations on actions of the Loan Documents during Quadra Entities that may be triggered upon the continuance existence of any an Event of Default (as defined in the Repurchase Agreement) or Event of Default; provided further Default (as defined under the Master Agreement). The Quadra Entities acknowledge and agree that the agreement this Agreement does not constitute a waiver of the Participant Lenders temporarily Existing Events of Default, a waiver of any other Event of Default (as defined in the Repurchase Agreement) or Event of Default (as defined in the Master Agreement) (whether now or in the future) or a waiver or forbearance (except as expressly set forth herein) of any other term, provision, duty, obligation, covenant, liability, right, remedy, power or remedy of any party to forbear the Repurchase Documents and Master Agreement, and the forbearance evidenced hereby shall not apply be a waiver of Wachovia's rights to nor preclude refuse to enter into any remedy available future forbearance agreements. For the avoidance of doubt, this Agreement shall not limit, restrict or impair in any way any of Wachovia's rights under the Repurchase Documents and/or Swap Documents which are unrelated to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies upon an Event of Default under any either the Repurchase Documents or all of the Loan Documents and/or applicable lawSwap Documents, including, without limitation, their respective Wachovia's rights to ▇▇▇▇ to market and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, rights to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights")make margin calls. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors The Quadra Entities acknowledge and agree that execution they may not sell, finance or otherwise transfer any Purchased Asset without Wachovia's prior written consent thereto in its sole and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent absolute discretion and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Wachovia shall not be required to act if directed against release its Lien on any Purchased Asset until all Obligations under the Borrower or Repurchase Documents and all obligations and liabilities then due and payable under the Subsidiary Guarantors if such action is contrary to the terms of this AgreementSwap Documents are paid in full.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 2 contracts
Sources: Forbearance Agreement, Forbearance Agreement (Quadra Realty Trust, Inc.)
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the Participant Lenders will temporarily forbear (subject Indenture Trustee and any broker or other Person that holds the Securities on behalf of such Noteholders, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.05 of the Indenture and such brokers or other Persons, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture and/or applicable law solely with respect to the terms hereofInterest Default (excluding, however, any right to default interest on the Notes (including on all unpaid interest on the Notes) from to the extent provided under the Indenture, during the Forbearance Period); provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under this Agreement, and providedfurther that no such forbearance shall constitute a waiver with respect to the Interest Defaults or any other Events of Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawIndenture.
(b) Upon a Termination EventWith respect to the Noteholders’ holdings of Second Lien Notes, effective as of the Forbearance Effective Date, the agreement Noteholders agree that, until the expiration of the Participant Lenders hereunder to Forbearance Period (as defined below), they will (individually and collectively) forbear from exercising their default-related remedies exercising, and shall immediately terminate without direct the requirement indenture trustee for the Second Lien Notes (the “Second Lien Indenture Trustee”) and any broker or other Person that holds the Securities (as defined in the Second Lien Indenture (as defined below)) on behalf of such Noteholders, and by signature hereto so direct the Second Lien Indenture Trustee pursuant to Section 6.05 of the Second Lien Indenture and such brokers or other Persons, not to exercise, any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies against the Company or the Subsidiaries that may become available under any or all the Second Lien Indenture and/or applicable law solely with respect to an Event of Default that may at some point come to exist under Section 6.01(6) of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Second Lien Indenture in connection with any or all the event that the Notes are accelerated by the requisite Holders of the Defaults and Events Notes or the Indenture Trustee as a result of the Interest Default, including, without limitation, the Specified Defaults.
(c) For As used herein, the avoidance term “Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of doubta Termination Event. As used herein, nothing herein limits “Termination Event” shall mean the right earlier to occur of (i) February 14, 2008; (ii) one Business Day after termination of the Administrative Agent or the Lenders, including during the Forbearance “Waiver Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).” under
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree Servicer and the Borrower hereby notify the Forbearing Parties that until the expiration aggregate outstanding principal amount of the loans and all accrued fees and interest and other obligations owing under the LEAF III RLSA will not be paid in full on or prior to the “Facility Maturity Date” under and as defined in the LEAF III RLSA (such condition, the “LEAF III Breach”). As a result of the LEAF III Breach, each of the events set forth on Schedule A attached hereto under the LEAF III RLSA will occur on the “Facility Maturity Date” (as defined in the LEAF III RLSA) (collectively, the “LEAF III Maturity Failures”). The occurrence of each of the LEAF III Maturity Failures will cause each of the events set forth on Schedule B attached hereto solely in connection with the LEAF III Breach (the “LEAF II Maturity Failures”), and entitles the Forbearing Parties to exercise rights and remedies pursuant to the RLSA and the other Transaction Documents absent the forbearance provided for hereunder. For the period commencing upon the occurrence of the LEAF III Maturity Failures on November 1, 2009 and ending on the close of business on December 1, 2009 (the “Forbearance Period”), the Forbearing Parties will forbear from exercising their rights and remedies resulting solely from the LEAF II Maturity Failures; provided, however that notwithstanding the foregoing (a) during the Forbearance Period the Interest Rate with respect to the Loans shall be the Default Funding Rate as provided for in Section 2.03(c) of the RLSA on each date during the Forbearance Period and (b) on each Remittance Date during the Forbearance Period, funds held in the Collection Account shall be distributed in accordance with Section 2.04 of the RLSA, as amended hereby, since the Facility Maturity Date shall have occurred on the date hereof. On the Facility Maturity Date, the Program Termination Event set forth in clause (iii) of the definition thereof in the RLSA will occur (the “Maturity Event”) and will entitle the Forbearing Parties to exercise rights and remedies pursuant to the RLSA and the other Transaction Documents absent the forbearance provided for hereunder. For the period commencing upon the occurrence of the Facility Maturity Date and ending on the close of business on December 1, 2009 (the “Maturity Event Forbearance Period”), the Forbearing Parties will forbear from exercising their rights and remedies resulting solely from the Maturity Event; provided, however that notwithstanding the foregoing (a) during the Maturity Event Forbearance Period the Interest Rate with respect to the Loans shall be the Default Funding Rate as provided for in Section 2.03(c) of the RLSA on each date during the Maturity Event Forbearance Period and (b) on each Remittance Date during the Maturity Event Forbearance Period, funds held in the Collection Account shall be distributed in accordance with Section 2.04 of the RLSA, as amended hereby, since the Facility Maturity Date shall have occurred on the date hereof. The forbearance provided herein shall not extend to any Event of Default, Program Termination Event or Servicer Default other than the LEAF II Maturity Failures and the Maturity Event, as applicable, and all of the Forbearing Parties’ rights and remedies with respect thereto are hereby reserved. Further, the forbearance provided herein shall not derogate from the Forbearing Parties’ rights to collect, reserve and/or apply proceeds of Pledged Assets to payment of outstanding liabilities as may be specifically provided for in the RLSA and the other Transaction Documents. If the foregoing forbearance is not extended by the Forbearing Parties by the end of the Forbearance Period with respect to the LEAF II Maturity Failures or the Maturity Event Forbearance Period with respect to the Maturity Event, the Borrower and the Servicer hereby acknowledge that the LEAF II Maturity Failures and the Maturity Event, respectively, shall exist and that the Lender shall be fully entitled to declare the Program Termination Date and each Forbearing Party shall be fully entitled to exercise all other rights and remedies with respect thereto under the RLSA and the other Transaction Documents.
(b) The Borrower hereby notifies the Qualifying Swap Counterparty that one or more of the LEAF II Maturity Failures constitutes the “Event of Default” (as defined in the Swap Agreement) set forth in clause (1) of Section 5(a)(vi) of the Swap Agreement and entitles the Qualifying Swap Counterparty to exercise remedies pursuant thereto absent the forbearance provided for hereunder. The Qualifying Swap Counterparty hereby agrees to forbear from exercising its rights and remedies resulting solely from such “Event of Default” or the Breach and each of the Qualifying Swap Counterparty and the Borrower hereby agrees that the “Early Termination Date” under (and as defined in) the Swap Agreement shall not be declared as a result of such “Event of Default” during the Forbearance Period. If the foregoing forbearance is not extended by the Qualifying Swap Counterparty by the end of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of hereby acknowledges that such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or “Event of Default; provided further that ” shall exist under the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Swap Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve Qualifying Swap Counterparty shall be fully entitled to exercise all rights and remedies that with respect thereto under the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Swap Agreement.
Appears in 1 contract
Sources: Forbearance, Reservation of Rights and Amendment (LEAF Equipment Finance Fund 4, L.P.)
Forbearance. Provided the Obligors strictly comply with all of the terms of this Agreement and no Forbearance Event of Default occurs:
(a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily Lender agrees to forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under from seeking immediate payment of the full amount of the Obligations and exercising any other rights and remedies against any of the Loan Documents during Obligors or the continuance Collateral. The Lender’s agreement contained herein shall not nullify, extinguish, satisfy, release, discharge or otherwise effect the Obligors’ obligations to the Lender, or constitute a waiver of any Default or Event of Default; provided further . The Obligors acknowledge and agree that there is no promise, express or implied, on the agreement part of the Participant Lenders temporarily Lender to forbear forebear beyond October 31, 2009, and the Obligors further agree that if any of the terms or conditions of this Agreement are not satisfied within the sole discretion of the Lender, or any Forbearance Event of Default occurs, the Lender’s agreement to forebear shall, at the election of the Lender, immediately terminate and the Forbearance Period shall not apply to nor preclude any remedy available to terminate. As of the Administrative Agent or end of the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawForbearance Period the Lender shall have all of its rights and remedies, including without limitation, the right to any relief demand immediate payment in respect full of adequate protection or relief from any stay imposed under such lawthe Obligations.
(b) Upon a Termination EventThe Lender will consider requests for additional Revolving Loans during the Forbearance Period in accordance with the terms of the Financing Agreement, as amended herein; provided, however, that if any of the terms or conditions of this Agreement are not satisfied within the sole discretion of the Lender, or any Forbearance Event of Default occurs, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders Lender may at any time thereafter proceed time, within its sole discretion, decline to exercise any make further Revolving Loans in accordance with the Financing Agreement and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Revolving Loans shall not be required deemed to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute be a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)its right to refuse to make further Revolving Loans.
Appears in 1 contract
Forbearance. Foothill and Borrower hereby acknowledge that certain Events of Default previously disclosed to Foothill by Borrower (aincluding without limitation those certain Events of Default acknowledged and disclosed Foothill by Borrower in those certain letters from Borrower to Foothill, dated as of March 3, 1998 and May 8, 1998) The Participant Lenders agree that until have occurred and are continuing under the expiration Loan Agreement (the "Current Defaults"). Foothill hereby agrees to forebear from taking any action or exercising any of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related its remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Agreement with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply Current Defaults during the Forbearance Period with all provisionsperiod from October 1, limitations1998, restrictions or prohibitions through and including October 31, 1998; provided, however, that would otherwise be effective or applicable under any of such forbearance shall apply only to the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear Current Defaults, shall not apply to nor preclude any remedy available to other Event of Default continuing as of the Administrative Agent Amendment Date, or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Event of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault that may occur after the Amendment Date. Further, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults forbearance shall not constitute a waiver by Foothill of any of its rights or remedies under the Loan Agreement, but shall only constitute a limited forbearance. Furthermore, nothing contained in this letter shall diminish, prejudice or waive any of Foothill's rights or remedies under the Loan Agreement or applicable law, and Foothill hereby reserves all such rights and remedies. Anything contained in the foregoing to the contrary notwithstanding, Foothill's continued forbearance with respect to the Current Defaults shall be contingent on Borrower's successful consummation of the sale of certain of Borrower's radio stations to Catholic Radio Network, LLC ("CRN") pursuant to the transactions contemplated in the proxy statement with respect to the sale of such Specified Defaults and that radio stations to CRN (the Lenders expressly reserve all rights and remedies that "Proxy"), in accordance with the Administrative Agent and approvals obtained from the Lenders now or may in holders of Borrower's Stock for such sale requested from the future have under any or all of the Loan Documents and/or applicable law holders in connection with all Defaults the Proxy, on or before October 31, 1998, and Events Borrower's failure to achieve the foregoing on or before the date set forth above shall terminate Foothill's agreement to the forgoing forbearance from and after the date of Default (including without limitation the Specified Defaults)such failure.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Broadcasting Corp)
Forbearance. Execution of this Amendment shall serve as Lessor's agreement to forbear from exercising its remedies under Article 15 of the Lease with respect to Lessee's failure to make (i) installment payments of the Deposit due under Appendix D to the Lease and Termination Payments (as defined in the Termination Agreement) due in December 1995 and January 1996 and (ii) installment payments of the Deposit and Termination Payments due on February 22 and March 22, 1996, for so long, and only so long, as Lessee otherwise complies with all of the terms of the Lease, as amended hereby, and the Termination Agreement, as amended, and pays Lessor the following:
(a) The Participant Lenders agree that until all amounts payable as set forth in Amendment No. 1 to the expiration Termination Agreement dated as of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise date of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.this Amendment;
(b) Upon a Termination EventThe amounts set forth in Exhibit A to this Amendment ("Deferred Deposit Payments") on April 22, 1996 and for the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of next succeeding forty eight (48) Rent Dates on which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.Rent is due; and
(c) For The amounts set forth in Exhibit B to this Amendment ("Deferred Rent") on August 22, 1997 and for the avoidance next succeeding Rent Dates on which Rent is due as set forth in such Exhibit B. Lessee may satisfy its obligations to pay the Deferred Deposit Payments and the Deferred Rent at any time by paying the portion of doubtall such amounts which constitutes principal, nothing herein limits together with the right portion of such amounts which constitutes interest accrued and unpaid as of the Administrative Agent date of payment all as reflected on Exhibits A or B to this Amendment. Each such Deferred Deposit Payment and Deferred Rent payment on and after the Lendersdates set forth in clauses (b) and (c) above, including during as the Forbearance Periodcase may be, to take any action to preserve or exercise rights or remedies against parties other than (i) shall constitute a portion of Deposit and Rent, as the Borrower and the Subsidiary Guarantors case may be, ("Third Party Rights"). For purposes ii) shall be made together with such installment of Deposit and/or Rent as shall be otherwise due on each such Rent Date as provided in Exhibit D of the foregoing, Lease and (iii) shall be made in accordance with the Borrower terms and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights conditions of the Administrative Agent and the Lenders.
(d) Lease. Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults Amendment shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now Deposit payment defaults or may in the future have under of any or all of the Loan Documents and/or applicable law in connection with all Defaults and other Events of Default which may have occurred and be continuing or which may occur in the future. Lessor's agreement to forbear shall terminate automatically if Lessee fails to make any payments specified in this Section 2 or if any Event of Default occurs or has occurred and is continuing (including without limitation other than with respect to an Event of Default to which this forbearance agreement set forth in this Section 2 applies). For so long, and only so long as Lessor's agreement to forbear has not terminated (i) Lessee shall be entitled to exercise its rights and privileges under Articles 5.1.2(b), 5.1.3, 7.4.1 and 13.3.1 of the Specified Defaults)Lease and (ii) Lessor shall be deemed to have elected not to apply the Deposit to sums due or to be come due to Lessor pursuant to Section 1 of Appendix D of the Lease, notwithstanding the occurrence and continuation of a Default or Event of Default under the Lease.
Appears in 1 contract
Forbearance. (a) The Participant Borrower has requested that the Administrative Agent and the Lenders agree that until forbear from exercising the expiration rights and remedies available to them with respect to the Borrower and its Subsidiaries as a result of the Forbearance PeriodSubject Events (hereinafter defined) during the period from the date hereof to and including October 31, 2001. The Administrative Agent and the Participant Determining Lenders will temporarily hereby agree to forbear (from instituting the Default Rate, prohibiting Advances from being continued as or converted into LIBOR Advances, and exercising the rights and remedies available to them with respect to the Borrower and its Subsidiaries as a result of the Subject Events, other than Blockage Rights, from the date hereof to and including October 31, 2001, subject to the terms hereofof this Agreement and subject to the occurrence of no further Event of Default. Upon the earlier of (i) the occurrence of any Event of Default, other than as a result of the Subject Events, (ii) the commencement of any collection action by the holders of the Senior Subordinated Notes or any trustee or representative thereof, or (iii) October 31, 2001, the Administrative Agent's and the Determining Lenders' agreement herein to forbear from instituting the Default Rate, prohibiting Advances from being continued as or converted into LIBOR Advances, and exercising the rights and remedies available to them with respect to the Borrower and its Subsidiaries as the result of the Subject Events (other than Blockage Rights) shall at the option of the Determining Lenders immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise of their default-related any and all rights and remedies available under the Credit AgreementsAgreement and any other Loan Document, Loan Documents at law, in equity, or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionswithout notice, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or notice other formalities of any kind, all of which are hereby expressly waived by the Borrower and the Subsidiary Guarantors hereby waiveBorrower. The Borrower and hereby acknowledges its noncompliance with the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all Credit Agreement as a result of the Loan Documents and/or applicable lawSubject Events, including, without limitation, their respective rights and remedies in connection with any or all acknowledges the existence of the Defaults and Events an Event of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree acknowledges that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Fourth Amendment constitutes
Appears in 1 contract
Sources: Limited Forbearance Agreement and Fourth Amendment to Credit Agreement (LLS Corp)
Forbearance. (a) The Participant Lenders agree that until the expiration In consideration of the Forbearance Period, execution and delivery by the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise Soupman Entities of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower this Agreement and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any performance of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all Soupman Entities of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies obligations set forth in connection with any or all of the Defaults and Events of Default, this Agreement including, without limitation, the Specified execution, delivery and performance of the agreements and instruments contemplated hereby, Lender agrees that so long as no Forbearance Default (as hereinafter defined) shall have occurred and be continuing, during the Forbearance Period (as hereinafter defined) Lender hereby agrees to forbear from exercising and enforcing against the Soupman Entities its rights, powers and remedies under the Loans and the ▇▇▇▇ Entities Guaranty by reason of the Existing Defaults; provided, however, that upon the occurrence of a Forbearance Default, Lender may exercise all of her rights and remedies with respect to the Existing Defaults and the Forbearance Default.
(b) On or after the Forbearance Termination Date (as hereinafter defined), Lender may (in her discretion) exercise all rights and remedies under the Loans and the ▇▇▇▇ Entities Guaranty which are the subject of the foregoing forbearance. Nothing in this Agreement shall be construed to be a waiver or release by the Lender of, or acquiescence in, the Existing Defaults, and the Existing Defaults shall continue in existence, subject only to the Lender’s agreement, as set forth herein, not to enforce her remedies against the Soupman Entities for the period of time specified in this Agreement, subject to the conditions set forth herein. The execution, delivery and performance of this Agreement shall not (i) constitute an extension, modification, renewal, release, discharge, satisfaction or waiver of any term or provision of the Loans or any guaranty thereof, (ii) except as expressly set forth herein, extend the terms of the Loans or the due date of any of the obligations under the Loans or any guaranty thereof, (iii) give rise to any obligation on the part of Lender to extend, modify, or waive any aspect of the Loans or any guaranty thereof, or (iv) give rise to any defenses or counterclaims to Lender’s right to compel payment of the Loans or any guaranty thereof, or otherwise enforce the agreements evidencing the Loans and the security for the Loans or any guaranty thereof. Subject to the forbearance herein specified during the Forbearance Period, Lender hereby expressly reserves all of her rights and remedies under the Loans and any guaranty thereof and under applicable law with respect to the Existing Defaults. From and after the Forbearance Termination Date, the Lender shall be entitled to enforce the Loans or any guaranty thereof in accordance with the respective terms of the Loans or any guaranty thereof.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).,
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration Each of the Forbearance PeriodLenders agrees that, for the Participant Lenders will temporarily forbear (subject period from the Amendment Effective Date to the terms hereof) from Section 3 Termination Date (as defined below), it will not exercise any of the remedies available to it, and will not instruct the Administrative Agent to exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely consent to the extent Administrative Agent exercising any of the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsavailable to it, limitationsin either case, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during (including, without limitation, to accelerate the continuance Loans or terminate the Commitments as contemplated in Section 8 of the Credit Agreement) solely as a result of the occurrence of any Event of Default or Potential Event of Default; provided further that the agreement Default arising under subsection 8.2(i) of the Participant Lenders temporarily Credit Agreement by virtue of the failure of Company to forbear make the scheduled interest payment required under the Indenture dated as of July 1, 1998 with Wilmington Trust Company, as Trustee (the "Specified Indenture"; and such non-payment, the "Specified Indenture Default") on July 1, 2003. The "Section 3 Termination Date" shall not apply be the earliest of (i) July 31, 2003, (ii) the date on which the Specified Indenture Default has been cured or waived, through amendments to nor preclude any remedy available the Specified Indenture or otherwise, so long as Company has delivered to the Administrative Agent five days' prior written notice of its intent to cure the Specified Indenture Default by payment or (iii) the Lenders in connection with any proceeding commenced date on which a notice of acceleration under any bankruptcy or insolvency law, including without limitation, the Specified Indenture has been delivered to any relief in respect of adequate protection or relief from any stay imposed under such lawCompany.
(b) Upon a Termination Event, the agreement Each of the Participant Lenders hereunder further agrees that any interest that would otherwise accrue pursuant to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all subsection 2.2E as a result of the Loan Documents and/or applicable law, including, without limitation, their respective rights Specified Indenture Default shall not accrue so long as no other Event of Default or Potential Event of Default has occurred and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaultsis continuing.
(c) For the avoidance of doubtdoubt and notwithstanding the forbearance granted in the foregoing Section 3(a), nothing herein limits the right parties hereto hereby agree that if an Event of Default or Potential Event of Default arising as a result of the Administrative Agent or the LendersSpecified Indenture Default has occurred and is continuing, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in subsection 2.2D of the Credit AgreementsAgreement, each Eurodollar Rate Loan shall be converted into a Base Rate Loan on the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement expiration date of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute Interest Period applicable thereto and no Base Rate Loan may be converted into a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Eurodollar Rate Loan.
Appears in 1 contract
Forbearance. (a) Each Company hereby acknowledges that the Designated Default has occurred on April 1, 2018 and is continuing which entitles the Creditor Parties to exercise their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law. No Creditor Party has waived, presently does not intend to waive and may never waive such Designated Default and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver. Each Company hereby acknowledges that Creditor Parties have the presently exercisable right to declare the Liabilities to be immediately due and payable under the terms of the Purchase Agreement and the Related Agreements.
(b) Subject to satisfaction of the conditions of effectiveness set forth in Section 8 of this Amendment Agreement, during the period (the “Forbearance Period”) commencing on the date hereof and ending on the earlier to occur of (a) June 30, 2018 and (b) the occurrence of any Forbearance Default (as defined in Section 3(d) of this Amendment Agreement), Creditor Parties will forbear from exercising their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law solely in respect of the Designated Default. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever Creditor Parties’ rights to administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any other collateral to the Liabilities, in each case, in accordance with the terms of the Purchase Agreement and the Related Agreements. The Participant Lenders agree that until Creditor Parties may consider extending the expiration date of the Forbearance Period, but any such extension will be determined by the Creditor Parties in their sole and absolute discretion and, if provided at all, shall only be made on terms and conditions satisfactory to the Creditor Parties in their sole and absolute discretion. Among other factors which the Creditor Parties may consider in determining whether to extend the expiration date of the Forbearance Period are the Companies’ financial performance, the Companies’ compliance with the June 30, 2018 “Operating Margin” financial covenant under Section 8.23(a), the occurrence of no Events of Default (other than the Designated Default) and the Creditor Parties’ receipt of evidence satisfactory in all respects to the Creditor Parties demonstrating that satisfactory progress (as determined by the Creditor Parties in their sole and absolute discretion) has been made by the Companies in connection with their diligent and good faith efforts to refinance the Liabilities by June 30, 2018. No such extension, if provided at all, shall be effective unless in a writing executed by the Creditor Parties and the Companies, and acknowledged and agreed to by the Guarantors.
(c) Upon the termination of the Forbearance Period, the Participant Lenders will temporarily agreement of Creditor Parties to forbear (subject with respect to the terms hereof) from Designated Default shall automatically and without further action terminate and be of no further force and effect, it being expressly agreed that the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability effect of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise termination will be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply permit Creditor Parties to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under (i) exercise such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under immediately without any further notice, passage of time or all forbearance of any kind and (ii) charge the Default Interest Rate (as defined in Section 1.7 of the Loan Documents and/or applicable lawNote) retroactively to April 1, including2018, without limitation, their respective rights which such Default Interest Rate charges shall be due and remedies payable on the next Interest Payment Date (as defined in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"Note). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution The occurrence of this Agreement constitutes any Event of Default (other than the Designated Default) shall constitute a direction by Forbearance Default. As of the Participant Lenders that date hereof, neither the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to Companies nor the contrary in Creditor Parties have any actual knowledge of any Events of Default other than the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this AgreementDesignated Default.
(e) The Borrower and Subject only to Section 3(b) of this Amendment Agreement, Creditor Parties reserve the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder right, in their sole discretion, to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under exercise any or all of their rights and remedies under the Loan Documents and/or Purchase Agreement , the Related Agreements and applicable law in connection with all Defaults and Events as a result of any Event of Default (including without limitation other than the Specified DefaultsDesignated Default), and no Creditor Party has waived any of such rights or remedies, and nothing in this Amendment Agreement, and no delay on their part in exercising any such rights or remedies, should be construed as a waiver of any such rights or remedies.
Appears in 1 contract
Sources: Forbearance and Third Amendment Agreement (usell.com, Inc.)
Forbearance. (a) Upon the satisfaction of the conditions precedent set forth in Section 3 of this Agreement, each Forbearing Holder hereby agrees that during the Forbearance Period it will not, directly or indirectly, (x) take any Remedial Action with respect to the Notes in connection with the Payment Default, (y) take any Remedial Action with respect to the purported breaches set forth in the letter dated May 21, 2010 of ▇▇▇▇▇ ▇. ▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Canadian Facility Matters”), it being understood that neither the Issuer nor the Guarantors admit to the validity of such breaches, or (z) sell, pledge, hypothecate or otherwise transfer any Notes, except to a purchaser or other entity who agrees in writing (delivered to Sidley Austin LLP) to be bound by all of the terms of this Agreement with respect to the relevant Notes being sold, pledged, hypothecated or transferred to such purchaser or entity. The Participant Lenders agree that until foregoing limited forbearance shall not be construed to impair the expiration ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of Default other than the Payment Default and the Canadian Facility Matters. Without prejudicing the rights and remedies of the Forbearing Holders in respect of the Canadian Facility Matters (except as expressly limited in this Agreement), in no event, during the Forbearance Period, shall the Participant Lenders will temporarily forbear (subject to Forbearing Holders assert that a Forbearance Termination Event has occurred because the terms hereof) from the exercise Canadian Facility Matters constitute a Default or an Event of their default-related remedies Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawIndenture.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuer and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder Indenture and the Notes without giving effect to forbear from exercising their default-related remedies the forbearance set forth herein.
(c) The Forbearing Holders hereby agree to execute and deliver a letter, promptly after the Effective Date to the Trustee in the form attached hereto as Schedule A (the “Letter”), which letter shall immediately terminate without not be withdrawn or rescinded by the requirement Forbearing Holders until the occurrence of any demandForbearance Termination Event.
(d) Except for the forbearance to the extent expressly set forth above in subsection 2(a), presentmenteach Forbearing Holder reserves each and every right and remedy it may have under the Notes, protest or notice of the Indenture, the Collateral Documents, any kind, all of which agreement relating thereto and under applicable law with respect to the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Payment Default, including, without limitation, the Specified Defaults.
(c) For right to continue to charge and collect interest at the avoidance of doubt, nothing herein limits the right default rate pursuant to Section 1 of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Notes. The Issuer and the Subsidiary Guarantors ("Third Party Rights"). For purposes each of the foregoing, the Borrower and the Subsidiary Guarantors hereby acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights default interest pursuant to Section 1 of the Administrative Agent Notes shall accrue from and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsafter July 1, 2010. Each Participant Lender agrees that, notwithstanding anything Nothing herein shall be deemed to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified Defaults and that any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Lenders Payment Default), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Collateral Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Effective Time, the Lender Parties agree that until the expiration or termination of the Forbearance Period, the Participant Lenders Period (as defined below): (i) they will temporarily each forbear (subject to the terms hereof) from the exercise exercising all of their default-related rights and remedies under against the Borrower, any other Credit Party (or any Subsidiary of a Credit Party), the Collateral or the Existing Credit Agreement, the Credit AgreementsAgreement, other Loan Documents or otherwise(as in effect both before and after giving effect to this Agreement) and applicable law, against the Borrower and the Subsidiary Guarantors in each case solely with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with (ii) all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Credit Agreement or any of the other Loan Documents during the continuance of any Default or Event of Default; provided further that , including any limitations, restrictions or prohibitions against the agreement reinvestment of the Participant Lenders temporarily to forbear shall not apply to nor preclude Net Proceeds of Dispositions or Events of Loss, the making of Restricted Payments or other payments by Borrower or any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, other Credit Party to any relief Affiliate of Borrower or any direct or indirect owner of an equity interest in respect the Borrower, any other Credit Party or any Affiliate of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies foregoing, shall immediately terminate without not, in each case solely as a result of the requirement of Specified Defaults, be in effect during the Forbearance Period. Notwithstanding the foregoing, nothing herein shall restrict, impair or otherwise affect any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective Lender Party’s rights and remedies against any Person other than the Credit Parties under any agreements (including the Intercreditor Agreement) containing subordination provisions in favor of any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights Agent and remedies in connection with Lenders (including any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than available to the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes Agent or Lenders as a result of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making occurrence or continuation of any necessary demand Specified Default) or the giving of amend or modify any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersprovision thereof.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration of During the Forbearance PeriodPeriod (as defined below), the Participant Lenders will temporarily Lender agrees to forbear (subject to the terms hereof) from the exercise of their default-related instituting any remedies under the Credit Agreements, Loan Documents or otherwiseprovided, against (i) Borrower pays the base rate of interest due under the Loan Agreement on a current basis, and (ii) no lender under any other credit facility under which Borrower and is obligated accelerates the Subsidiary Guarantors solely to the extent the availability maturity of such facility upon default or otherwise exercises its remedies arises exclusively from as a lender under such facility (each a “Forbearance Termination Event”). Notwithstanding the Specified Defaults; provided that the Borrower foregoing, (i) any forbearance granted by Lender shall not constitute and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions not be construed or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance interpreted to constitute a waiver of any Default or Event of Default; provided further that Default which may now or hereafter exist under the agreement Loan Documents, and (ii) this Agreement and the forbearance granted by Lender hereunder shall not constitute an amendment or modification of any of the Participant Lenders temporarily to forbear Loan Documents. All other rights of Lender contained in the Loan Documents shall not apply to nor preclude any remedy available to remain in full force and effect. Upon the Administrative Agent termination of the Forbearance Period (as defined below), or earlier, upon the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect occurrence of adequate protection or relief from any stay imposed under such law.
(b) Upon a Forbearance Termination Event, Lender shall have the agreement of the Participant Lenders hereunder right to forbear from exercising their default-related remedies shall immediately cease or terminate Lender’s forbearance hereunder, without the requirement of any further notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to replevy, protest or notice other formalities of any kind, all of which the Borrower and the Subsidiary Guarantors are hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed expressly waived by Borrower, whereupon Lender shall be entitled to exercise any and all of their respective rights and remedies available to Lender under any or all of the Loan Documents and/or applicable or at law, in equity or otherwise, including, without limitation, their respective rights institution of collection actions against the Borrower. All periods of limitation specified by statute and remedies in connection with all defenses of laches or waiver as to any Default or all Event of Default existing on the Defaults Effective Date or arising during the Forbearance Period (as defined below) will be tolled and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including otherwise suspended during the Forbearance Period. During the Forbearance Period, no payment of preferred or common dividends (“Dividends”) shall be made by Borrower to take its shareholders as long as any action to preserve Default or exercise rights or remedies against parties other than Event of Default exists, provided that the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required prohibited from paying any Dividends necessary in order to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
maintain Borrower’s tax status as a real estate investment trust (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsREIT).
Appears in 1 contract
Sources: Forbearance Agreement (American Mortgage Acceptance Co)
Forbearance. (a) The Participant Administrative Agent, the Lenders and the Issuing Bank agree that until the expiration in favor of the Forbearance Period, Borrower that they shall refrain from taking any action to foreclose or recover the Participant Lenders will temporarily forbear “Collateral” (subject as defined in the Pledge Agreement) or otherwise initiate collection proceedings against the Borrower with respect to the terms hereof) Pledge Defaults from the exercise date hereof through and including the earlier of their default-related remedies (i) March 31, 2014, or (ii) the occurrence of an Event of Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Agreement (Licensing) (other than a Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree Default that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any have waived in writing and all of their respective rights a Pledge Default) (the “Forbearance Period”). The Borrower acknowledges and remedies under any or all agrees that, notwithstanding the foregoing, (a) each of the Loan Documents and/or Administrative Agent, the Lenders and the Issuing Bank reserves the right to enforce each and every term of the Pledge Agreement (other than remedies resulting from a Pledge Default during the Forbearance Period), and is under no duty or obligation of any kind or any nature to grant the Borrower any additional period of forbearance beyond the Forbearance Period; (b) each action of the Administrative Agent, the Lenders and the Issuing Bank in entering into this Agreement shall not be construed as a waiver or relinquishment of, or estoppel to assert, any of Administrative Agent's rights under the Pledge Agreement or applicable law, including, without limitation, their respective rights ; and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For each action of the avoidance of doubtAdministrative Agent, nothing herein limits the Lenders and the Issuing Bank in entering into this Agreement is without prejudice to the right of the Administrative Agent or Agent, the Lenders, including during Lenders and the Issuing Bank to pursue any and all remedies available to any of them upon expiration of the Forbearance Period, to take any action to preserve Period or exercise rights immediately upon the occurrence of an Event of Default under the Credit Agreement (Licensing) or remedies against parties a “Default” under the Pledge Agreement (other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsPledge Default).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until In reliance upon the expiration representations, warranties and covenants of the Forbearance PeriodCredit Parties contained in this Agreement, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take and without waiving the Acknowledged Events of Default or any action to preserve other Default or exercise rights Event of Default that may now exist or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingwhich may occur hereafter, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights each of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Forbearing Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary subject to the terms and conditions of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that , the Administrative Agent and the Forbearing Lenders now shall forbear from exercising any remedies that it or they may in have against the future have under Borrower or any other Credit Party or all their respective assets and properties solely as a result of the Loan Documents and/or applicable law in connection with all Defaults and occurrence of the Acknowledged Events of Default. Such forbearance does not apply to any Default, Event of Default (including other than the Acknowledged Events of Default) or other failure by the Borrower or any other Credit Party to perform in accordance with the Credit Agreement or any other Credit Document (including, without limitation limitation, this Agreement). Notwithstanding the Specified Defaults)foregoing forbearance with respect to each Acknowledged Event of Default during the Forbearance Period, for the avoidance of doubt, an Event of Default, to the extent having occurred and continuing, shall continue to exist for all purposes under the Credit Agreement and the other Credit Documents, and, as a result, (i) the Borrower may not give any Notice of Borrowing or make any Letter of Credit Request, and no Notice of Borrowing or Letter of Credit Request shall be honored during the Forbearance Period and (ii) no Auto-Extension Letter of Credit may be renewed or extended during the Forbearance Period to the extent that the Non-Extension Notice Date under any such Auto-Extension Letter of Credit occurs five (5) or more Business Days after the date hereof. The Administrative Agent, the Borrower and each Letter of Credit Issuer hereby agrees that, pursuant to Section 3.2(b) of the Credit Agreement, this Agreement shall constitute written notice that one or more applicable conditions specified in Article VIII of the Credit Agreement cannot be satisfied during the Forbearance Period and, therefore, no Letter of Credit Issuer shall permit the extension of any such Auto-Extension Letter of Credit to the extent that the Non-Extension Notice Date thereunder occurs during the Forbearance Period and not less than five (5) Business Days after the date hereof.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Notwithstanding the Existing Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Existing Defaults (other than as set forth in the following sentence). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders forbearance set forth in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventSection 4 below, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Existing Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Existing Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults).conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Sources: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. (a) 2.1 The Participant Lenders agree that until the expiration Lender Group hereby agrees, as of the Forbearance PeriodEffective Date (as defined below), to forbear from exercising any rights or remedies under Section 8.1 of the Participant Lenders will temporarily forbear Credit Agreement with respect to the Designated Events of Default until the earliest of any of the following: (i) the date of the occurrence of a breach or default under this Agreement; (ii) the date of the occurrence of a Default or Event of Default that is not a Designated Event of Default; (iii) the termination of that certain Forbearance Agreement dated as of February 19, 2009, by and among the Borrowers, Guarantors and the holders of the Senior Secured Notes party thereto; or (iv) March 2, 2009 (subject to Section 5(b) below) (collectively, the terms hereof) “Forbearance Termination Date”).
2.2 Each Borrower and Guarantor hereby acknowledge and agree that upon the Forbearance Termination Date, the forbearance provided under this Section 2 shall terminate and the Lender Group shall have the right to exercise any and all rights and remedies under Section 8.1 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity due to the existence of the Designated Events of Default. Each Borrower and Guarantor hereby further acknowledge and agree that, from and after the exercise Forbearance Termination Date, the Lender Group shall be under no obligation of their default-related any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Default or any other Event of Default (whether similar or dissimilar to the Designated Events of Default).
2.3 The foregoing notwithstanding, if and to the extent that the Lender Group continues to make Advances or otherwise extend credit under the Credit AgreementsAgreement, Loan Documents or otherwise, against notwithstanding the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance occurrence of any Default or Event of Default; provided further that the agreement , whether specified herein or otherwise, (a) such Advances or other extension of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy credit which hereafter may be made available to Borrowers shall be made, issued, caused to be issued, or executed, as applicable, in the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender Group’s sole and absolute discretion, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (b) Upon no such action shall be construed as (i) a Termination Event, the agreement waiver or forbearance of any member of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Lender Group’s rights, remedies, and powers against Borrowers, Guarantors or the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, Collateral (including, without limitation, the Specified Defaults.
(c) For right to terminate without notice the avoidance making of doubt, nothing herein limits the right of the Administrative Agent Advances or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand other extensions of credit under the Credit Agreement) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise (ii) a waiver of any such Third Party Rights Default or Event of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Default or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Designated Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Sources: Forbearance Agreement (Rbg, LLC)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 6:30 p.m. Eastern Daylight Time on the first business day that until is fifteen (15) calendar days after the expiration Effective Date, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted, during the Forbearance Period, to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or applicable law; provided further that nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, or an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under the respective Applicable Agreements), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the respective Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Sources: Forbearance Agreement (AG Mortgage Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders Effective as of the Second Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Second Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Second Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Second Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Second Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) October 17, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Second Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Second Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all need for delivery of the Loan Documents and/or applicable lawTermination Notice or any other notice, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(cy) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Second Amended
Appears in 1 contract
Sources: Forbearance Agreement (Wornick CO)
Forbearance. Without limiting Sections 2 and 4 of this Agreement, Administrative Agent and Required Lenders hereby agree as of the Forbearance Effective Date to forbear from exercising any rights or remedies under the Loan Documents arising solely out of the Specified Events of Default until the date (the “from exercising any rights or remedies under the Loan Documents arising solely out of the Specified Events of Default until the date (the “Forbearance Termination Date” that is the earliest of (a) The Participant Lenders agree that until November 20, 2009, (b) the expiration occurrence of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any a Default or Event of Default (other than a Specified Event of Default; provided further that ) or (c) the agreement occurrence of a breach or default by Borrower or any other Loan Party under this Agreement (the Participant Lenders temporarily period beginning on the Forbearance Effective Date being referred to forbear herein as the “Forbearance Period”). The forbearance shall not apply to nor preclude any remedy available only to the Administrative Agent Specified Events of Default and not to any other Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawEvents of Default, including without limitation, any other existing Defaults or Events of Default known or not known to Administrative Agent and Lender or Borrower or any relief in respect other Loan Party at this time and any Defaults or Events of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault occurring after the date hereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and reserve all of their respective rights to exercise rights and remedies under any or all of the Loan Documents and/or applicable lawupon the occurrence of any such other Default of Event of Default at any time, including, without limitation, their respective before the expiry or termination of the Forbearance Period. The parties hereto agree that neither the agreements of Administrative Agent and the Lenders herein nor the acceptance by Administrative Agent or the Lenders of any of the payments provided for in the Loan Documents, nor any payment prior to the date hereof shall (i) excuse Borrower or any other Loan Party from any of its obligations under the Loan Documents, or (ii) toll the running of any time periods applicable to any such rights and remedies in connection with any or all of the Defaults and Events of Defaultremedies, including, without limitation, any grace periods with respect to Defaults under the Specified Defaults.
(c) For the avoidance Loan Documents or otherwise. Each of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes other Loan Parties agrees that it will not assert laches, waiver or any other defense to the enforcement of any of the foregoing, Loan Documents based upon the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery agreements of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now to forbear herein or may the acceptance by Administrative Agent or the Lenders of any of the payments provided for in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation or any payment prior to the Specified Defaults)date hereof.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Participant Lenders will temporarily forbear (subject Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the terms hereofSpecified Existing Defaults and any Anticipated Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) from during the Forbearance Period); provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults, Anticipated Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) August 15, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Forbearance Agreement) under the DDJ Forbearance Agreement or any amendment or modification to the DDJ Forbearance Agreement; (D) termination of the DDJ Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the ▇▇▇▇▇▇ Engagement Letter (as defined below) or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay ▇▇▇▇▇▇’▇ fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of the ▇▇▇▇▇▇ Engagement Letter (as defined below); (G) the occurrence of any Event of Default that is neither a Specified Existing Default, nor an Anticipated Default; (H) the failure of the Company to comply with any term, condition, covenant or agreement set forth in this Agreement.
; (eI) The Borrower the failure of any representation or warranty made by the Company under this Agreement to be true and the Subsidiary Guarantors acknowledge and agree that the agreement correct in all material respects as of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to date when made; (J) the Specified Defaults shall not constitute a waiver of such Specified Defaults and that commencement by or against the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now Company or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Subsidiaries of Default a case under title 11 of the United States Code; or (including without limitation K) the Specified Defaults)commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or the Subsidiaries.
Appears in 1 contract
Sources: Forbearance Agreement (Wornick CO)
Forbearance. (a) 2.1 The Participant Lenders agree that until the expiration Lender Group hereby agrees, as of the Forbearance PeriodEffective Date (as defined below), to forbear from exercising any rights or remedies under Section 8.1 of the Credit Agreement with respect to the Designated Events of Default until the earliest of any of the following: (i) the date of the occurrence of a breach or default under this Agreement; (ii) the date of the occurrence of a Default or Event of Default that is not a Designated Event of Default; or (iii) March 2, 2009 (collectively, the Participant Lenders will temporarily forbear (subject “Forbearance Termination Date”).
2.2 Each Borrower and Guarantor hereby acknowledge and agree that upon the Forbearance Termination Date, the forbearance provided under this Section 2 shall terminate and the Lender Group shall have the right to exercise any and all rights and remedies under Section 8.1 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity due to the terms hereof) existence of the Designated Events of Default. Each Borrower and Guarantor hereby further acknowledge and agree that, from and after the exercise Forbearance Termination Date, the Lender Group shall be under no obligation of their default-related any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Default or any other Event of Default (whether similar or dissimilar to the Designated Events of Default).
2.3 The foregoing notwithstanding, if and to the extent that the Lender Group continues to make Advances or otherwise extend credit under the Credit AgreementsAgreement, Loan Documents or otherwise, against notwithstanding the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance occurrence of any Default or Event of Default; provided further that the agreement , whether specified herein or otherwise, (a) such Advances or other extension of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy credit which hereafter may be made available to Borrowers shall be made, issued, caused to be issued, or executed, as applicable, in the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender Group’s sole and absolute discretion, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (b) Upon no such action shall be construed as (i) a Termination Event, the agreement waiver or forbearance of any member of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Lender Group’s rights, remedies, and powers against Borrowers, Guarantors or the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, Collateral (including, without limitation, the Specified Defaults.
(c) For right to terminate without notice the avoidance making of doubt, nothing herein limits the right of the Administrative Agent Advances or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand other extensions of credit under the Credit Agreement) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise (ii) a waiver of any such Third Party Rights Default or Event of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Default or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Designated Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Sources: Forbearance Agreement (Rbg, LLC)
Forbearance. The Servicer is hereby authorized to forbear in connection with its enforcement of Tax Liens, provided that the subject Property Owners comply with the individual terms and conditions of forbearance established by the Servicer in its sole discretion, but which shall include (a) The Participant Lenders agree that until the expiration repayment in full of the Forbearance PeriodAdjusted Redemptive Value of the applicable Tax Lien over a period ending no later than thirty-six (36) months from the applicable Conveyance Date, unless it is determined by the Servicer that an extension of the repayment period is in the best economic interest of the Issuer and/or the PACE Charge Lien Owner, as applicable, but in no event shall the repayment period exceed thirty-six (36) months from the due date of the first forbearance payment, (b) payments on a periodic basis directly to the Collateral Agent and Custodian for deposit to the MTAG Issuer Lockbox, (c) the requirement that all required payments accruing subsequently to the subject Tax Lien for the subject Property that if not paid could result in the creation of a further “tax lien” (as defined in the Section 11-301 of the City Admin. Code) on such Property (the “Subsequent Taxes and Assessments”) remain current, (d) an acknowledgement of the amount due with respect to the Tax Lien that is the subject of such forbearance, a waiver of any waivable defenses to any foreclosure action and any other similar stipulations deemed necessary or desirable by the Servicer, (e) other than with respect to Properties classified by the City as within Tax Class 1, the Participant Lenders will temporarily forbear (subject Property Owner agrees to permit access to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance Property for purposes of any Default or Event of Default; provided further Environmental Assessment relating thereto, (f) the Property Owner agrees that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawforeclosure action relating to the Property, including without limitationthe holder of the related Tax Lien shall have the right to appoint a receiver, and (g) such forbearance is evidenced by a written agreement executed by each of the Servicer and the Property Owner; provided, however, that the Servicer may not agree to any relief such forbearance (in respect of adequate protection writing or relief from any stay imposed under such law.
(botherwise) Upon a Termination Event, until after the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveapplicable Closing Date. The Borrower details of such forbearance shall be maintained in the Servicer’s collection system. The Servicer shall provide the City and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed its representatives with access to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including such information during the Forbearance PeriodServicer’s customary business hours, to take any action to preserve or exercise rights or remedies against parties other than at the Borrower and the Subsidiary Guarantors ("Third Party Rights")City’s request. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction Any reasonable expenses incurred by the Participant Lenders that the Administrative Agent act Servicer in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to negotiating and monitoring the terms and conditions of this Agreementforbearance shall be considered Lien Administration Expenses.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Servicing Agreement
Forbearance. (a) The Participant Lenders agree that until 1. For the expiration period beginning as of the date first above written (the “Commencement Date”) and ending 5:00 p.m., New York time, on May 15, 2003 (hereinafter referred to as the “Forbearance Period”), the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Requisite Lenders, for each Requisite Class Lender, without waiving, curing or ceasing the continuance of the Specified Events of Default, hereby agree to forbear from the exercise of any of their rights and remedies available under the Credit Agreement and the Credit Documents on account of the Specified Events of Default. The Administrative Agent’s and Lenders’ forbearance provided for herein shall be effective only with respect to the Specified Events of Default and shall automatically terminate and cease to be of force and effect, and the Administrative Agent and Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies as may be available under any or all of the Loan Documents and/or Credit Agreement and under applicable law, includingupon or after the occurrence of any other Event of Default or a default under the terms of this Forbearance Agreement (individually a “Forbearance Default” and, without limitationcollectively, their respective rights the “Forbearance Defaults”).
2. The Requisite Lenders’ agreement to forbear as set forth above is subject to the following conditions, which shall be applicable throughout the Forbearance Period, and remedies in connection the failure to comply with any or all of the Defaults and Events of these conditions shall be deemed to be a Forbearance Default, including, without limitation, the Specified Defaults.:
(ca) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including The Credit Parties agree that during the Forbearance Period, no Credit Parity, nor its Subsidiaries, shall directly or indirectly, declare, order, pay, make or set apart any sum to take effectuate any action payment to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes holders of the foregoingSubordinated Indebtedness; and
(b) No later than May 7, 2003 at 9:00 a.m. New York Time, the Borrower agrees to deliver to the Agent and its counsel a revised version of the Subsidiary Guarantors acknowledge 2003-2007 Plan (the “Revised Business Plan”), which Revised Business Plan shall incorporate cost savings and other reductions that the Credit Parties’ management has identified; and
(c) The Credit Parties agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of to deliver to the Administrative Agent (i) on May 2, 2003 a thirteen (13) week budget for the Credit Parties, (ii) on May 9, 2003 an updated (13) week budget and (iii) on May 13, 2003, a summary of the Lenders.disbursements made by the Credit Parties during the week ending May 9, 2003; and
(d) Execution No additional Defaults or Events of this Agreement constitutes a direction by Default other than the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in Specified Events of Default shall occur or exist under the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Agreement or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.any other Credit Documents; and
(e) The Borrower and Guarantors shall throughout the Subsidiary Guarantors acknowledge term of this Agreement continue to make a full and complete disclosure of all material aspects of their financial condition and business operations in accordance with the terms of the Credit Agreement.
3. During the Forbearance Period and provided no Forbearance Default exists, and further provided that the terms and conditions of this Forbearance Agreement are satisfied, the Requisite Lenders agree that they will not accelerate, or will not direct the agreement Administrative Agent to accelerate, the indebtedness owed to the Lenders under the Credit Agreement or otherwise exercise any of their rights and remedies, in each case, as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect Specified Events of Default outlined herein. Notwithstanding any of the foregoing or any other provision herein which may be construed to the Specified Defaults shall contrary, although at this time the Requisite Lenders have elected not constitute a waiver to charge interest at the default rate as set forth in Section 2.7 of such Specified Defaults and that the Credit Agreement, the Lenders expressly reserve all rights and remedies that to do so at any time after the Administrative Agent and the Lenders now or may in the future have under any or all termination of the Loan Documents and/or applicable law in connection with all Defaults and Forbearance Period, which default rate of interest may be charged retroactively to the date of the Specified Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until Each Loan Party specifically acknowledges the expiration existence and continuation of the Forbearance PeriodLiquidity Period and the Specified Default. In reliance on the representations, the Participant Lenders will temporarily forbear (warranties, covenants and agreements contained in this Agreement, and subject to the terms hereof) from satisfaction of each condition precedent set forth in Section 4 hereof but only so long as the exercise of their default-related remedies under Forbearance Termination Date shall not have occurred and except as permitted by this Agreement, the Credit AgreementsAdministrative Agent, Loan Documents or otherwisethe Swingline Lender, against the Borrower Issuing Bank and the Subsidiary Guarantors solely Lenders hereby agree to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply forbear during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable from exercising their rights and remedies under any of the Loan Documents during and applicable law arising as a result of the occurrence or continuance of the Specified Default and the Potential Defaults. Notwithstanding the foregoing, the forbearance granted by the Administrative Agent, the Swingline Lender, the Issuing Bank, and the Lenders shall not constitute, and shall not be deemed to constitute, (a) a waiver of the Specified Default, the Potential Defaults, or of any other Default or Event of Default; provided further that Default under the agreement Loan Documents or (b) a waiver of any rights or remedies arising under the Loan Documents as a result of the Participant Lenders temporarily existence and continuance of the Liquidity Period. On and after the Forbearance Termination Date, the Administrative Agent’s, the Swingline Lender’s, the Issuing Bank’s and the Lenders’ agreement hereunder to forbear shall not apply to nor preclude terminate automatically without further act or action by any remedy available to such Persons, and the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventAgent, the agreement of Swingline Lender, the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent Issuing Bank and the Lenders may at any time thereafter proceed shall be entitled to exercise any and all of their respective rights and remedies available to them under this Agreement or the other Loan Documents, at law, in equity or otherwise without any further lapse of time, expiration of applicable grace periods or requirements of notice, all of the which are hereby expressly waived by each Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) Party. For the avoidance of doubt, nothing herein limits (i) the right of foregoing forbearance shall not prohibit the Administrative Agent from delivering notices relating to the Borrowing Base or the Lendersnotices of any other Defaults, including during the Events of Default or a Forbearance PeriodTermination Event, to take (ii) any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes Overadvance that occurs under Section 2.24 of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Credit Agreement shall constitute not be subject to forbearance, and (iii) the making of any necessary demand foregoing forbearance shall not limit or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of prohibit the Administrative Agent and the Lenders.
(d) Execution from making Protective Advances in its discretion pursuant to Section 2.25 of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Limited Forbearance Agreement (Tuesday Morning Corp/De)
Forbearance. (a) The Participant 2.1 Effective as of the date hereof, Administrative Agent and the Lenders signatory hereto, constituting Required Lenders, hereby agree that until the expiration or termination of the Forbearance Period, the Participant Lenders they will temporarily forbear from exercising default-related rights and remedies against the Borrowers or any other Obligor solely with respect to (i) the Alleged Asset Coverage Ratio Default; (ii) the accuracy of any Compliance Certificate insofar as it concerns the Asset Coverage Ratio as of March 31, 2016; and (iii) any cross-default to the Term Loan Agreement arising from matters that are subject to the terms hereof) from Term Loan Forbearance Agreement for so long as such agreement shall remain ine effect (collectively, the exercise of their default-related remedies under the Credit Agreements“Subject Defaults”); provided, Loan Documents however, that nothing herein shall restrict, impair or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions otherwise affect any Lender’s or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective Agent’s rights and remedies under any agreements (including, without limitation, the Intercreditor Agreement) containing subordination provisions in favor of any or all of the Lenders or the Administrative Agent (including, without limitation, any rights or remedies available to the Lenders or the Administrative Agent as a result of the occurrence or continuation of the Alleged Asset Coverage Ratio Default) or amend or modify any provision thereof.
2.2 As used herein, the term “Forbearance Period” shall mean the period beginning on the date hereof and ending on the earlier to occur of (the occurrence of clause (i) or (ii), a “Termination Event”): (i) any Forbearance Default (as hereinafter defined) or (ii) June 6, 2016, at 11:59 p.m. New York time. As used herein, the term “Forbearance Default” shall mean (A) the occurrence of any Default or an Event of Default other than the Subject Defaults, (B) the failure of any Borrower or any other Obligor to comply timely with any term, condition, or covenant set forth in this Agreement, (C) the failure of any representation or warranty made by any Borrower or any other Obligor under or in connection with this Agreement to be true and complete in all material respects as of the date hereof, (D) the repudiation and/or assertion of any defense by any Obligor with respect to this Agreement or any Loan Documents Document or the pursuit of any claim by any Obligor against the Administrative Agent, any Issuing Bank, any Lender, or any other Indemnitee of any of the foregoing, and/or applicable law(E) the termination or expiration of any other forbearance granted by another creditor of any of the Obligors (including of the forbearance pursuant to the Term Loan Forbearance Agreement) or taking of an enforcement action or other exercise of any or all rights and remedies (including delivery of any notice of default or event of default or similar notice) by any such creditor (including by the Term Loan Agent, any “Lender” under (and as defined in) the Term Loan Credit Agreement or any other holder of obligations under the Term Loan Credit Agreement or by any holder of obligations under the Senior Notes Indenture) or acceleration by such creditor of indebtedness owing to such creditor, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that Term Loan Agent, any “Lender” under (and as defined in) the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to Term Loan Credit Agreement or any other holder of obligations under the contrary in Term Loan Credit Agreement or by an holder of obligations under the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this AgreementSenior Notes Indenture.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Subject to the terms hereof) and conditions of this Agreement, including but not limited to Lender’s receipt of a payment of all remaining amounts outstanding, including interest, fees and expenses and any other amounts owed to the Lender from or on behalf of the exercise of their default-related Borrower on or before December 31, 2009, Lender agrees to forbear from exercising its rights and remedies under the Credit Financing Agreements, Loan Documents applicable law or otherwiseotherwise until the earliest to occur of (a) December 31, against 2009, (b) the Borrower third day following any Fundamental Transaction (as defined in the Bridge Note), and the Subsidiary Guarantors solely to the extent the availability (c) Borrower’s breach of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance terms and provisions of this Agreement or any Default or Event of Default; provided further that Default under and as defined in the agreement of Bridge Note (other than pursuant to Section 6(a)(i) thereof) (the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law“Termination Date”).
(b) Upon a the Termination EventDate, the agreement of the Participant Lenders hereunder Lender to forbear from exercising their default-related remedies shall immediately terminate automatically and without the requirement of any demand, presentment, protest further action or notice terminate and be of no force and effect, it being understood and agreed that the effect of such termination will be to permit Lender to exercise such rights and remedies immediately, including, but not limited to the foreclosure of all collateral as described in the Financing Agreements; in each case without any further notice, passage of time or forbearance of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right Borrower agrees that all of the Administrative Agent Obligations under the Bridge Note shall, if not sooner paid, be absolutely and unconditionally due and payable in full in cash or other immediately available funds by Borrower to Lender on the Termination Date. No termination of any of the Financing Agreements or any provisions thereof shall relieve or discharge Borrower, or the LendersEnvision Guarantors, including during of their duties, covenants and obligations under the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Financing Agreements and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand until all Obligations have been finally paid in full in cash or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersother immediately available funds.
(d) Execution If after the date hereof the Company and/or its Subsidiaries in one or more transactions issues any debt or equity securities or otherwise obtains a loan for borrowed money in connection with any capital raising transaction (“Capital Raising Transaction”) in excess of this Agreement constitutes $500,000 in the aggregate for all such transactions, the Company shall repay a direction portion of the outstanding principal amount, and accrued interest thereon, hereunder at least equal to 25% of the gross proceeds (net of broker’s commissions) received by the Participant Lenders that the Administrative Agent act Company or such Subsidiary in accordance with its termssuch transaction(s). Each Participant Lender agrees that, notwithstanding anything to such repayment shall be made with one (1) Business Day following the contrary in date of receipt by the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if Company of such action is contrary to the terms of this Agreementproceeds.
(e) The Beginning on April 12, 2009, the Note Amount (together with any capitalized interest thereon pursuant to the terms hereof) owed by Borrower to Lender shall bear interest at a rate of 15% per year. Such interest shall be payable monthly in arrears beginning on the first business day of each calendar month commencing the first calendar month after which the Borrower raises $100,000 in the aggregate (net of brokers’ commissions) for all Capital Raising Transactions. Any amounts of accrued interest not paid on the first business day for any calendar month after April 12, 2009 shall be compounded and added to the Subsidiary Guarantors acknowledge and agree that principal amount then outstanding under the agreement Bridge Note.
(f) As additional consideration for the Lender agreeing to this Agreement, the Borrower shall issue 10,000 shares of common stock of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect Borrower to the Specified Defaults Lender. Such shares of common stock shall not constitute a waiver be duly and validly issued, fully paid and nonassessable, and free and clear of such Specified Defaults all Liens and that shall be delivered to the Lenders expressly reserve all rights and remedies that Lender within 5 business days after the Administrative Agent and the Lenders now or may in the future have under any or all signing of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)this Agreement.
Appears in 1 contract
Forbearance. Subject to all of the other terms and conditions set forth herein, and (a) The Participant Lenders agree that until the expiration solely with respect to any defaults or breaches arising out of the Forbearance PeriodSpecified Events, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder Holder agrees to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under the May Note and Security Agreement (it being understood that nothing herein shall constitute a waiver of any Event of Default pursuant to the May Note or all the Security Agreement) solely during the period from the date hereof until that date (the “Forbearance Termination Date”) which is the earliest to occur of (i) the failure after the date hereof of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection Company to comply with any or all of the Defaults and Events terms or undertakings of Defaultthis Agreement, including, without limitation, the covenants set forth in Section 4 hereof, (ii) a breach of any warranty or representation of the Company in this Agreement, or (iii) the occurrence of a different Event of Default (other than a default arising out of the Specified Defaults.
(cEvents) For under either the avoidance February Note or the May Note. Upon the Forbearance Termination Date, the agreement of doubtHolder to forbear from exercising its rights and remedies in respect of the Specified Events shall automatically terminate for all purposes under the May Note and Security Agreement for all periods, nothing herein limits including periods after the Forbearance Termination Date and Holder shall be free to proceed to enforce any or all of its rights and remedies set forth in the May Note or the Security Agreement including, without limitation, the right to demand the immediate repayment of the Administrative Agent or the Lenders, including during the Forbearance Period, May Note and to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes possession of the foregoing, collateral under the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsSecurity Agreement. Each Participant Lender The Company hereto agrees that, notwithstanding anything subject to the contrary in the Credit Agreements, the Administrative Agent shall not be required agreement of Holder to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary forbear from exercising certain of its rights and remedies as and to the terms extent expressly set forth in this Agreement, all rights and remedies of Holder under the May Note and Security Agreement shall continue to be available to Holder from and after the date of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. Bank agrees to forebear until October 31, 2001 from exercising its remedies under the Existing Loan Documents, notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to (ai) The Participant Lenders agree maintain the Adjusted Quick Ratio and (ii) increase the annual value of its contract value of subscriptions on a quarterly basis (the foregoing being referred to as "Existing Defaults") or any future breaches under the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement (as so modified, the "Loan Documents"). By signing below, the Borrower acknowledges that they are currently in default and as a result of such default, (i) effective September 1, 2001 and until the expiration earlier of Borrower being in compliance with the Existing Defaults or Bank's waiver of the Existing Defaults the Finance Charge and Collateral Handling Fee shall be increased to the default rates defined in Sections 3.2 and 3.5 and (ii) Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and as provided under applicable law. Nothing in this Agreement in any way shall constitute Bank's waiver of Borrower's Existing Defaults. A breach by Borrower of any of the terms set forth in this Agreement or the occurrence of any default (other than the Existing Defaults) under the Existing Loan Documents shall result in immediate termination of Bank's forbearance, whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any remedies available to Bank under the Existing Loan Documents and this Agreement, and under applicable law. Upon termination of the Forbearance Period described above, without any notice to Borrower, Bank may exercise any remedies available to Bank under the Loan Documents and under applicable law. In addition, Bank's agreement to continue to forbear from enforcing its remedies under the Existing Loan Documents until the end of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies notwithstanding Borrower's Existing Defaults under the Credit AgreementsExisting Loan Documents, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely (a) in no way shall be deemed an agreement by Bank to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period waive Borrower's compliance with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any other terms of the Existing Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawDocuments, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
as modified by this Loan Modification and Forbearance Agreement and (b) Upon a Termination Event, the agreement shall not limit or impair Bank's right to demand strict performance of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement all other terms and covenants as of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivedate. The Borrower and the Subsidiary Guarantors agree further agrees that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights rights or remedies allowed to Bank when an Event of Default occurs, as provided for in the Existing Loan Documents (the "Default Rights") upon termination of the Administrative Agent and the Lenders.
(d) Execution Forbearance Period shall not be affected by reason of this Agreement constitutes and the Borrower shall not assert as a direction by defense thereto the Participant Lenders passage of time, estoppel, laches or any statute of limitations to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms exercise of any Default Rights was precluded by this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Forbearance. Provided each of the following are fully and timely satisfied, Lender shall forbear from exercising its Default Remedies resulting from the Tenant Default:
(a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear neither Borrower nor Guarantor breaches this Agreement (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the it being expressly understood and agreed by Borrower and the Subsidiary Guarantors solely Guarantor that neither of them shall be afforded any notice or opportunity to the extent the availability cure any breach of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.this Agreement);
(b) Upon a Termination Eventon or before October 1, 2020, Tenant resumes making all Lease Payments, in full, into Borrower’s Account in accordance with the agreement terms of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Lease and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawand thereafter timely makes said Lease Payments into Borrower’s Account; provided, includinghowever, without limitationif the initial Lease Payment required hereunder is not timely made in accordance with the terms hereof, their respective rights and remedies this condition to forbearance shall not be breached if Tenant actually makes said initial Lease Payment in connection accordance with any or all of the Defaults and Events of Defaultterms hereof by no later than October 12, including, without limitation, the Specified Defaults.2020;
(c) For the avoidance of doubt, nothing herein limits the right in accordance with Section 365(d)(4) of the Administrative Agent United States Bankruptcy Code and prior to the earlier of the BK Discharge Deadline (as defined below) or the Lendersdeadline for affirmation/rejection of leases in the Tenant’s bankruptcy proceeding (as said deadline may be extended by the presiding bankruptcy court pursuant to Section 365(d)(4) of the United States Bankruptcy Code), including during (i) the Forbearance PeriodTenant or bankruptcy trustee assumes the Lease in Tenant’s bankruptcy proceeding and (ii) Borrower provides Lender with evidence reasonably acceptable to Lender confirming the presiding bankruptcy court’s approval of said Lease assumption (e.g., to take any action to preserve an order from the bankruptcy court presiding over Tenant’s bankruptcy approving said Lease assumption or exercise rights other court filings which demonstrate that the Tenant or remedies against parties other than bankruptcy trustee has timely assumed the Borrower Lease and the Subsidiary Guarantors ("Third Party Rights"presiding bankruptcy court has approved the same). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.;
(d) Execution on or before December 31, 2020 (the “BK Discharge Deadline”), (i) the bankruptcy court presiding over the Tenant’s bankruptcy issues a final decree or order closing said bankruptcy proceeding and (ii) Borrower provides Lender with a copy of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower said decree or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.order; and
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement there is no event, circumstance or condition which, if it were to continue uncured, would, with notice or lapse of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not time or both, constitute a waiver of such Specified Defaults and that Default (other than the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have Tenant Default) under any or all of the Loan Documents/Other Related Documents and/or applicable law in connection with all Defaults at any point from the Effective Date through the date both items (b) and Events of Default (including without limitation the Specified Defaults)c) above are timely and fully satisfied.
Appears in 1 contract
Forbearance. Subject to all the terms and conditions set forth herein, Collateral Agent and Lenders shall forbear from filing any legal action or instituting or enforcing any rights and remedies they may have against Borrower in connection with the Existing Events of Default immediately after completion of the Initial Accelerated Paydown (the “Forbearance Effective Date”) until the date which is the earliest to occur of (a) The Participant Lenders agree that until the expiration failure after the date hereof of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance terms or undertakings of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawthis Agreement, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventthe occurrence after the date hereof of any other Event of Default (other than the Existing Events of Default) and (c) February 5, 2025 (the earliest such date, the agreement of the Participant “Forbearance Termination Date”). This Agreement does not constitute a waiver or release by Collateral Agent and Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice obligations of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed pursuant to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Existing Events of Default, including, without limitation, any other existing Event of Default or any Event of Default which may arise in the Specified Defaults.
(c) For future after the avoidance date of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance Agreement. If Borrower does not comply with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower , Collateral Agent and the Subsidiary Guarantors acknowledge Lenders shall have no further obligations under this Agreement and agree that the agreement of the Participant Lenders hereunder shall be permitted to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of exercise at such Specified Defaults and that the Lenders expressly reserve all time any rights and remedies against Borrower as they deem appropriate in their sole and absolute discretion. Borrower understands that the Administrative Collateral Agent and Lenders have made no commitment and are under no obligation whatsoever to grant any additional extensions of time at the Lenders now or may in the future have under any or all end of the Loan Documents and/or applicable law in connection with all Defaults Forbearance Period. The time period between the Forbearance Effective Date and Events of Default (including without limitation the Specified Defaults)Forbearance Termination Date is referred to herein as the “Forbearance Period.”
Appears in 1 contract
Sources: Loan and Security Agreement (Viracta Therapeutics, Inc.)
Forbearance. 2.1 Subject to the terms and conditions of this Agreement, and provided that no Forbearance Default (as defined below) has occurred, the Lender agrees that during the period commencing on the date of this Agreement and ending on and the first to occur of (i) September 10, 2014, (ii) the Distribution and (iii) the termination of the Exchange Agreement (the “Forbearance Period”), the Lender will not, and will procure that NYGC will not, file suit or take any other action to enforce its rights with respect to the Existing Default. This limited forbearance does not extend to any other default or Events of Default with respect to the CTek Debt Obligations or any other rights and remedies available to the Lender with respect to the Existing Default. Upon the earlier of (a) The Participant Lenders agree that until the occurrence of a Forbearance Default (as defined below) or (b) the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the Lender’s agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to automatically be deemed terminated and the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender shall be entitled to, including immediately and without limitationnotice, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, exercise all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver CTek Debt Obligations and this Agreement.
2.2 Notwithstanding anything to the contrary contained herein, the effectiveness of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that agreement made by the Administrative Agent Lender pursuant to Section 2.1 hereof, and the Lenders now or may in Lender’s agreement to forbear as described therein, is conditioned upon the future have under any or all Borrower’s agreement, and the Borrower hereby agrees, to (i) duly execute and deliver to the Lender this Agreement, (ii) duly execute, and deliver to each of the Loan Documents and/or applicable law in connection with Shareholders and perform its obligations under the Exchange Agreement, (iii) procure that each Shareholder duly executes, delivers to the Borrower and performs such Shareholder’s respective obligations under the Exchange Agreement, and (iv) take such other actions and fulfill the obligations set forth herein.
2.3 Notwithstanding anything to the contrary contained herein upon execution of this Agreement, the Lender hereby immediately and unconditionally releases each of the Borrower’s China Subsidiaries from all Defaults and Events of Default obligations (including without limitation the Specified CTek Debt Obligations) under the Prior Loans.
2.4 The following events shall constitute “Forbearance Defaults).”:
Appears in 1 contract
Sources: Forbearance and Waiver Agreement (CleanTech Innovations, Inc.)
Forbearance. Without limiting Sections 2 and 4 of this Agreement, Agents and Required Lenders hereby agree as of the Forbearance Effective Date to forbear from exercising any rights or remedies under the Loan Documents arising solely out of the Specified Events of Default until the date (the “Forbearance Termination Date”) that is the earliest of (a) The Participant Lenders agree that until October 31, 2009, (b) the expiration occurrence of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any a Default or Event of Default (other than a Specified Event of Default; provided further that ) or (c) the agreement occurrence of a breach or default by Borrower or any other Loan Party under this Agreement (the Participant Lenders temporarily period beginning on the Forbearance Effective Date and ending on the Forbearance Termination Date being referred to forbear herein as the “Forbearance Period”). This forbearance shall not apply to nor preclude any remedy available only to the Administrative Agent Specified Events of Default and not to any other Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawEvents of Default, including without limitation, any other existing Defaults or Events of Default known or not known to Agents and Lenders or Borrower or any relief in respect other Loan Party at this time and any Defaults or Events of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault occurring after the date hereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent Agents and the Lenders may at any time thereafter proceed to exercise any and reserve all of their respective rights to exercise rights and remedies under any or all of the Loan Documents and/or applicable lawupon the occurrence of any such other Default or Event of Default at any time, including, without limitation, their respective before the expiry or termination of the Forbearance Period. The parties hereto agree that neither the agreements of Agents and the Lenders herein nor the acceptance by Agents or the Lenders of any of the payments provided for in the Loan Documents, nor any payment prior to the date hereof shall (i) excuse Borrower or any other Loan Party from any of its obligations under the Loan Documents, or (ii) toll the running of any time periods applicable to any such rights and remedies in connection with any or all of the Defaults and Events of Defaultremedies, including, without limitation, any grace periods with respect to Defaults under the Specified Defaults.
(c) For the avoidance Loan Documents or otherwise. Each of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of other Loan Parties agrees that it will not assert laches, waiver or any other defense to the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making enforcement of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law based upon the agreements of Agents and the Lenders to forbear herein or the acceptance by Agents or the Lenders of any of the payments provided for in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Loan Documents or any payment prior to the date hereof.
Appears in 1 contract
Sources: Forbearance Agreement and Fourth Amendment to the Credit Agreement (Purple Communications, Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder Bank agrees to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any the Existing Loan Documents and at law ("Default Rights") until the earlier of (a) October 30, 2002, or all (b) the occurrence of a Default under this Agreement (the "Forbearance Period"), notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to comply with the profitability covenant set forth in Section 6.2 of the Loan Agreement for the fiscal quarter ended June 30, 2002 (the foregoing being referred to as "Existing Defaults"). Hereinafter, the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement are hereinafter collectively called the "Loan Documents". By signing below, Borrower acknowledges that it is currently in default and as a result of the Existing Defaults, Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and/or and as provided under applicable law, including. The Forbearance Period shall be immediately terminated, without limitationnotice, their respective rights if (a) Borrower breaches of any of the terms set forth in this Agreement, (b) the occurrence of any default (other than the Existing Defaults) under the Existing Loan Documents, or (c) if any recital, representation or warranty made herein, in any document executed and remedies delivered in connection herewith, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by or on behalf of the Borrower in connection with this Agreement or any other document executed and delivered in connection with this Agreement, shall prove to have been false, incomplete or all misleading in any material respect on the date as of which it was made (collectively, a "Default"), whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any Default Rights. Bank's agreement to forbear from enforcing its Default Rights under the Existing Loan Documents until the end of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
Forbearance Period (ca) For the avoidance of doubt, nothing herein limits the right in no way shall be deemed an agreement by Bank to waive Borrower's compliance with all other terms of the Administrative Agent Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement and (b) shall not limit or the Lenders, including during the impair Bank's right to demand strict performance of all other terms and covenants as of any date. Nothing in this Loan Modification and Forbearance Period, to take Agreement in any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes way shall constitute Bank's waiver of the foregoing, the Existing Defaults. Borrower and the Subsidiary Guarantors acknowledge and agree further agrees that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Default Rights by Bank upon termination of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Forbearance Period shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms affected by reason of this Agreement.
(e) The Borrower , and the Subsidiary Guarantors acknowledge and agree Borrower shall not assert as a defense thereto the passage of time, estoppel, laches or any statute of limitations to the extent that the agreement exercise of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Rights was precluded by this Agreement.
Appears in 1 contract
Sources: Loan Modification and Forbearance Agreement (Syntellect Inc)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 26, 2020, (ii) 4:30 p.m. Eastern Daylight Time on the third business day after the occurrence of the matters set forth on Schedule 3, and (iii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted during the Forbearance Period to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or other applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under such Applicable Agreement), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration of that, during the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Agreement and the other Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Guarantors, solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply (except as otherwise expressly waived or modified under this Agreement) in all respects during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including including, without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law. The Borrower and the Guarantors acknowledge and agree that, if any Default or Event of Default other than the Specified Defaults occurs during the Forbearance Period, the Administrative Agent and the Lenders have reserved the right to, and may, exercise, at any time and from time to time, any and all rights and remedies under the Loan Documents and applicable law in connection therewith.
(b) Upon the occurrence of a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any further demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaive to the fullest extent permitted by applicable law. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or and applicable law, including, without limitation, their respective rights and remedies in connection with the Specified Defaults or any or all of the other Defaults and or Events of Default, including, without limitation, . The Borrower and the Specified DefaultsGuarantors acknowledge and agree that all of the agreements and undertakings set forth herein shall remain in full force and effect and binding on them notwithstanding the occurrence of a Termination Event.
(c) The Borrower and the Guarantors understand and accept the temporary nature of the forbearance provided hereby and that the Participant Lenders have given no assurances that they will extend such forbearance or provide waivers or amendments to the Credit Agreement or any other Loan Document.
(d) Nothing in this Agreement constitutes a legal obligation to participate in the Restructuring or to execute any related documents and no such legal obligation shall arise except pursuant to mutually agreeable executed definitive documentation.
(e) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act or forbear from acting in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreement, the Administrative Agent shall not be required to act if directed against the Borrower or the Guarantors if such action is contrary to the terms of this Agreement.
(f) For the avoidance of doubt, nothing herein limits the right rights of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("“Third Party Rights"”). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(eg) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that that, except as expressly set forth in this Agreement, the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or and applicable law in connection with all Defaults and Events of Default (including including, without limitation limitation, the Specified Defaults)) or Events of Default.
Appears in 1 contract
Sources: Forbearance Agreement (Oxford Resource Partners LP)
Forbearance. Provided that each of the Credit Parties complies with all of the requirements contained in this Amendment and the Loan Documents, the Agents and Lenders shall forbear from enforcing their respective remedies with respect to the Pending Defaults for the period (athe "Forbearance Period") beginning on the date hereof and ending on the Overline Termination Date (defined below). If at any time any of the Credit Parties fails to comply with any of the requirements set forth herein or if any additional Default or Event of Default occurs under this Amendment, the Credit Agreement or the other Loan Documents, Agents and Lenders may immediately commence, proceed or otherwise continue with any or all rights and remedies available under the Loan Documents, under applicable law or otherwise (collectively, "Lenders' Remedies") without demand or notice to any Credit Party, but as among Agents and Lenders, subject to the provisions of the Credit Agreement with respect to exercising remedies. The Participant Lenders agree that until matters disclosed on Schedule 1 hereto shall not constitute additional Defaults or Events of Default during the expiration Forbearance Period. At the end of the Forbearance Period, if Borrower has not paid, in full, all amounts due and owing under the Participant Loan Documents, or otherwise cured the Pending Defaults to the full satisfaction of Agents and Lenders will temporarily forbear (in their respective sole and absolute discretion, Agents and Lenders may proceed with Lenders' Remedies without any notice or demand to any Credit Party or any other party, but as among Agents and Lenders, subject to the terms hereof) from provisions of the exercise of Credit Agreement with respect to exercising remedies. Lenders and Agents are entering into this Amendment as an accommodation to the Credit Parties and the Credit Parties remain bound to perform their default-related remedies respective obligations under the Credit AgreementsLoan Documents. The "Overline Termination Date" shall mean October 30, Loan Documents 2000, or otherwiseif earlier, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of date upon which occurs any Default or Event of Default; provided further that Default other than the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of DefaultPending Defaults, including, without limitation, the Specified DefaultsCredit Parties' failure to timely make the October Interest Payment as required in Section 3.3 below.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. Subject to, and effective as of, the Forbearance Effective Date:
(a) The Participant Lenders agree Each Holder Counterparty hereby agrees that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under it will (i) not take any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Remedial Action in connection with the Anticipated Defaults and (ii) direct the Trustee not to take any proceeding commenced under any bankruptcy or insolvency lawRemedial Action in connection with the Anticipated Default, including without limitation, and the Trustee has agreed to any relief act in respect of adequate protection or relief from any stay imposed under accordance with such lawdirection.
(b) Upon a Termination EventUnless earlier terminated in accordance with the terms of this Agreement, the agreement Counterparties’ forbearance, as provided herein, shall immediately cease without requirement for any notice, demand or presentment of any kind on the Forbearance Termination Date, and the Company at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder Indenture without giving effect to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandforbearance set forth herein, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders Counterparties may at any time thereafter proceed to exercise any and all of their respective applicable rights and remedies under any or all of the Loan Documents and/or applicable lawremedies, including, including without limitation, their respective any applicable rights and remedies in connection with any or all of the Anticipated Defaults and any other defaults or Events of Default, including, without limitation, Default under the Specified DefaultsIndenture or rights under this Agreement.
(c) For The Counterparties’ forbearance is further expressly subject to and conditioned upon the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Company’s compliance with each and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower every term and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms provision of this Agreement.
(ed) The Borrower Trustee and Counterparties have not waived, are not by this Agreement waiving, and have no intention of waiving, any Events of Default which may be continuing on the Subsidiary Guarantors acknowledge date hereof or any Events of Default which may occur after the date hereof (whether such Events of Default are the same or similar to the Anticipated Defaults or otherwise), and agree that the agreement of the Participant Lenders hereunder Trustee and Counterparties have not agreed to forbear from exercising with respect to any of their default-related rights or remedies concerning any Events of Default (other than, during the Forbearance Period, the Anticipated Defaults to the extent expressly set forth herein) occurring at any time. Subject to the rest of this section 2 (solely with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults Anticipated Defaults), Trustee and that Counterparties reserve the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may right, in the future have under their discretion, to exercise any or all of their rights and remedies under the Loan Documents and/or applicable law in connection with all Defaults Indenture and the Notes as a result of any other Events of Default (including without limitation the Specified Defaults)occurring at any time. Trustee and Counterparties have not waived any of such rights or remedies, and nothing in this Agreement, and no delay on their part in exercising any such rights or remedies, may or will be construed as a waiver of any such rights or remedies.
Appears in 1 contract
Sources: Forbearance Agreement (Accelerate Diagnostics, Inc)
Forbearance. (a) The Participant Lenders agree Each Holder hereby agrees to forbear, and agrees to direct the Trustees and the Security Agent to forbear, at all times from the Effective Date to, but not including, the Forbearance Expiration Date, from taking or exercising any Enforcement Action solely in connection with the Subject Defaults (the “Forbearance”).
(b) To the extent that any of the Trustee or Security Agent takes or exercises (or intends to take or exercise) any Enforcement Action (as defined below) in connection with the Subject Defaults at any time from the Effective Date to, but not including, the Forbearance Expiration Date, each Holder hereby agrees to deliver a letter to the Trustee and Security Agent directing the Trustee and Security Agent not to take or exercise any Enforcement Action prior to the Forbearance Expiration Date, which letter shall not be withdrawn or rescinded until the expiration Forbearance Expiration Date; provided, however, that nothing in this paragraph shall restrict in any way any action being taken whether directly by a Holder or by or through a Trustee or the Security Agent with respect to the Rectification Proceedings.
(c) The agreement in this Section 1.2 is an agreement of forbearance only with respect to the Subject Defaults and does not constitute an agreement to forbear with respect to any other Defaults or Events of Default, whether presently existing or arising in the future. In the event of any Default or Event of Default, other than the Subject Defaults, the Holders, in addition to their right to terminate this Agreement, reserve all of their respective rights and remedies under this Agreement, the Intercreditor Agreement, each Indenture and each other agreement, document, note and instrument in respect thereof including, without limitation to the generality of the Forbearance Periodforegoing, the Participant Lenders will temporarily forbear other Note Documents (subject to collectively the terms hereof“Operative Documents”) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against including without limitation the Borrower rights asserted by the Security Agent in the Rectification Proceedings and all rights and claims under the two deeds of accession dated 18 November 2016 and executed by FSHC and the Subsidiary Security Agent, and as provided in Section 1.2(g) hereof.
(d) The Issuers and the Guarantors solely further acknowledge and agree to comply with, and procure that each other member of the extent Group complies with, the availability of such remedies arises exclusively covenants, agreements and restrictions set forth in Exhibit D hereto from the Specified Defaults; provided that Effective Date.
(e) The Issuers acknowledge and agree that, notwithstanding the Borrower and the Subsidiary Guarantors shall comply during Forbearance, the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any shall not constitute a waiver of the Loan Documents during the occurrence and continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, any Subject Default or any rights of the Holders, the Trustees and/or the Security Agent in connection therewith. For the avoidance of doubt, in the event the Forbearance Expiration Date occurs for any reason, the Trustees, the Security Agent and the Holders may freely pursue all of their respective rights and remedies in connection with any or all respect of the Defaults Subject Defaults.
(f) The Forbearance and Events consents granted pursuant to this Agreement and/or the Consent Solicitation shall not be capable of Defaultbeing relied upon by the Sponsor Group.
(g) Nothing in this Agreement or in any Transaction Documents, shall operate as a forbearance or waiver in respect of, or have any prejudice to or effect whatsoever upon, any of the following: (i) the rights or claims of the Security Agent, or of any Holder of the Senior Secured Notes or the Senior Notes, under, in respect of or in connection with, those two deeds of accession both dated 18 November 2016 and executed by FSHC and the Security Agent, including, without limitation, the Specified Defaults.any rights or claims directly or indirectly with respect to:
(cx) For the avoidance Unreported Assets; and/or (y) any subsidiary of doubtFSHC which owns, nothing herein limits the right whether directly or indirectly, any of the Administrative Agent Unreported Assets; or (ii) the Lenders, including during contesting of FSHC's claim in the Forbearance Period, to take any action to preserve Rectification Proceedings or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or application whatsoever in such proceedings, in the giving case of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction foregoing whether, by the Participant Lenders that the Administrative Security Agent act in accordance with its terms. Each Participant Lender agrees thator for and on behalf of, notwithstanding anything to the contrary in the Credit Agreementsor by, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement any holder of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now Senior Secured Notes or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Senior Notes.
Appears in 1 contract
Sources: Standstill and Deferral Agreement
Forbearance. (a) 2.1 The Participant Lenders agree that until the expiration Lender Group hereby agrees, as of the Forbearance PeriodEffective Date (as defined below), to forbear from exercising any rights or remedies under Section 8.1 of the Credit Agreement with respect to the Designated Events of Default until the earliest of any of the following: (i) the date of the occurrence of a breach or default under this Agreement; (ii) the date of the occurrence of a Default or Event of Default that is not a Designated Event of Default; or (iii) January 15, 2009 (collectively, the Participant Lenders will temporarily forbear (subject “Forbearance Termination Date”).
2.2 Each Borrower and Guarantor hereby acknowledge and agree that upon the Forbearance Termination Date, the forbearance provided under this Section 2 shall terminate and the Lender Group shall have the right to exercise any and all rights and remedies under Section 8.1 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity due to the terms hereof) existence of the Designated Events of Default. Each Borrower and Guarantor hereby further acknowledge and agree that, from and after the exercise Forbearance Termination Date, the Lender Group shall be under no obligation of their default-related any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Default or any other Event of Default (whether similar or dissimilar to the Designated Events of Default).
2.3 The foregoing notwithstanding, if and to the extent that the Lender Group continues to make Advances or otherwise extend credit under the Credit AgreementsAgreement, Loan Documents or otherwise, against notwithstanding the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance occurrence of any Default or Event of Default; provided further that the agreement , whether specified herein or otherwise, (a) such Advances or other extension of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy credit which hereafter may be made available to Borrowers shall be made, issued, caused to be issued, or executed, as applicable, in the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender Group’s sole and absolute discretion, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (b) Upon no such action shall be construed as (i) a Termination Event, the agreement waiver or forbearance of any member of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Lender Group’s rights, remedies, and powers against Borrowers, Guarantors or the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, Collateral (including, without limitation, the Specified Defaults.
(c) For right to terminate without notice the avoidance making of doubt, nothing herein limits the right of the Administrative Agent Advances or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand other extensions of credit under the Credit Agreement) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise (ii) a waiver of any such Third Party Rights Default or Event of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Default or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Designated Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Sources: Credit Agreement (B & B B, Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder Bank agrees to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any the Existing Loan Documents and at law ("Default Rights") until the earlier of (a) October 7, 2003, or all (b) the occurrence of a Default under this Agreement (the "Forbearance Period"), notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to comply with the Tangible Net Worth covenant set forth in Section 6.7 of the Loan Agreement, through the day of this Loan Modification and Forbearance Agreement (the foregoing being referred to as "Existing Defaults"), Hereinafter, the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement are hereinafter collectively called the "Loan Documents". By signing below, Borrower acknowledges that it is currently in default and as a result of the Existing Defaults, Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and/or and as provided under applicable law, including. The Forbearance Period shall be immediately terminated, without limitationnotice, their respective rights if (a) Borrower breaches of any of the terms set forth in this Agreement, (b) any default occurs (other than the Existing Defaults) under the Existing Loan Documents, or (c) any recital, representation or warranty made herein, in any document executed and remedies delivered in connection herewith, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by or on behalf of the Borrower in connection with this Agreement or any other document executed and delivered in connection with this Agreement, shall prove to have been false, incomplete or all misleading in any material respect on the date as of which it was made (collectively, a "Default"), whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any Default Rights. Bank's agreement to forbear from enforcing its Default Rights under the Existing Loan Documents until the end of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
Forbearance Period (ca) For the avoidance of doubt, nothing herein limits the right in no way shall be deemed an agreement by Bank to waive Borrower's compliance with all other terms of the Administrative Agent Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement and (b) shall not limit or the Lenders, including during the impair Bank's right to demand strict performance of all other terms and covenants as of any date. Nothing in this Loan Modification and Forbearance Period, to take Agreement in any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes way shall constitute Bank's waiver of the foregoing, the Existing Defaults. Borrower and the Subsidiary Guarantors acknowledge and agree further agrees that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Default Rights by Bank upon termination of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Forbearance Period shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms affected by reason of this Agreement.
(e) The Borrower , and the Subsidiary Guarantors acknowledge and agree Borrower shall not assert as a defense thereto the passage of time, estoppel, laches or any statute of limitations to the extent that the agreement exercise of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Rights was precluded by this Agreement.
Appears in 1 contract
Sources: Loan Modification and Forbearance Agreement (Epicedge Inc)
Forbearance. Subject to the terms and conditions of this Agreement, L2 is willing to postpone pursuing its rights and remedies under the Transaction Documents, in particular and without limitation with respect to the acceleration of the Note and immediate payment of the Default Amount (as defined in the Note), with respect to the Claimed Registration Default and the Merger Default (“Forbearance”), on the following terms:
(a) The Participant Lenders agree that until Subject to AIPT’s compliance with the expiration terms of this Agreement, the Forbearance will commence on the Effective Date and will expire at 11:59 p.m., on March 31, 2019, time being of the essence (the “Forbearance Period”), or earlier as provided herein. During the Forbearance Period, the Participant Lenders will temporarily forbear (acceleration of the Note and payment of the Default Amount shall be deemed suspended with respect to the Claimed Registration Default and Merger Default, subject to the terms hereof) from the ability of L2 hereunder to immediately exercise of their default-related its rights and remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower this Agreement and the Subsidiary Guarantors solely Transaction Documents, including but not limited to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any acceleration of the Loan Documents during the continuance Note and enforcement of any Default or Event of Default; provided further that the agreement payment of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawDefault Amount.
(b) Upon a Termination Event, If AIPT does not receive the agreement required stockholder approval of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall Merger on or before March 31, 2019 (a “Vote Failure”), then the Forbearance Period will immediately terminate without the requirement of any demandterminate, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders L2 may at any time thereafter proceed to immediately exercise any and all of their respective its rights and remedies provided for under any or all the Transaction Documents, including but not limited to the acceleration of the Loan Documents and/or applicable lawNote (and as amended, including, without limitation, their respective rights the Amended Note) and remedies in connection with any or all enforcement of payment of the Defaults and Events of Default, including, without limitation, the Specified DefaultsDefault Amount.
(c) For If at any time after the avoidance of doubt, nothing herein limits the right Effective Date: (i) AIPT fails to abide by any of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery conditions of this Agreement shall constitute the making Agreement; or (ii) AIPT fails to comply with any of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement any of the Participant Lenders hereunder other Transaction Documents; or (iii) AIPT fails to forbear from exercising their default-related remedies with respect timely make the payments required under the Amended Note; or (iv) any Events of Default, in addition to the Specified Defaults shall Claimed Registration Default and Merger Default, occur, including but not constitute limited to bankruptcy proceedings that would be a waiver default under Section 3.7 of such Specified Defaults the Note (and that as amended, the Lenders expressly reserve all Amended Note), then the Forbearance Period will immediately terminate, and L2 may immediately exercise any of its rights and remedies that provided for under the Administrative Agent and Transaction Documents, including but not limited to the Lenders now or may in the future have under any or all acceleration of the Loan Documents and/or applicable law in connection with all Defaults Note (and Events as amended, the Amended Note) and enforcement of payment of the Default (including without limitation the Specified Defaults)Amount.
Appears in 1 contract
Sources: Forbearance Agreement (Precision Therapeutics Inc.)
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date, the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the applicable Indenture Trustee and any broker or other Person that holds the Notes on behalf of such Noteholders, and by signature hereto so direct the applicable Indenture Trustee pursuant to Sections 502, 507 and 512 of the applicable Indenture and such brokers or other Persons, not to exercise, any rights and remedies against Holdings, the Participant Lenders will temporarily forbear (subject U.S. Issuer, the Canadian Issuer, or the Subsidiaries that are available under the applicable Indenture and/or applicable law solely with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Interest Defaults and the Subsidiary Guarantors solely Financial Reporting Defaults; provided, however, the Noteholders shall be entitled to assert a right to the accrual of default interest to the extent provided under the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply applicable Indenture during the Forbearance Period but may not seek any remedy or take any action with all provisionsrespect thereto during the Forbearance Period; provided, limitationshowever, restrictions that nothing herein shall restrict, impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during Noteholders’ rights under this First Amended and Restated Agreement, and provided further that no such forbearance shall constitute a waiver with respect to any Defaults (other than the continuance Interest Defaults and Financial Reporting Defaults) or any other Events of Default under the applicable Indenture.
(b) As used herein, the term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the earlier to occur of (i) January 31, 2009; and (ii) two (2) Business Days after the delivery by Paul, Weiss, as counsel to the Noteholder Group, to the applicable Issuer and the applicable Indenture Trustee a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time but only upon or after the occurrence of any Forbearance Default; provided, however, that notwithstanding the foregoing, this First Amended and Restated Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsections (A) and (F) below, without the need for delivery of the Termination Notice or any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the valid acceleration of all indebtedness arising under (i) the U.S. Indenture, (ii) the Canadian Indenture or (iii) that certain credit agreement dated as of April 6, 2005 (as amended or modified, the “Credit Agreement”), among the Issuers, as borrowers, Holdings, as guarantor, certain lenders and The Bank of Nova Scotia, as Administrative Agent; (B) the failure of the Issuers and Holdings to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction which determination shall be made by the holders of a majority in principal amount of the Notes issued under the Indentures in good faith and their reasonable discretion; (C) the occurrence of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties Default other than the Borrower Interest Defaults and Financial Reporting Defaults; (D) the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingU.S. Issuer, the Borrower Canadian Issuer, Holdings or the Subsidiaries to comply with any material term, condition, covenant or agreement set forth in this First Amended and Restated Agreement; (E) the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making failure of any necessary demand representation or warranty made by the U.S. Issuer, the Canadian Issuer, Holdings or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights Subsidiaries under this First Amended and Restated Agreement to be true and correct in all material respects as of the Administrative Agent and date when made; (F) the Lenders.
commencement by or against the U.S. Issuer, the Canadian Issuer, Holdings, or any Subsidiary of a case under title 11 of the United States Code, the Companies’ Creditors Arrangement Act or any other act that seeks relief under any comparable liquidation, reorganization or insolvency regime or proceeding that is not, in the case of proceedings commenced against the U.S. Issuer, the Canadian Issuer, Holdings or the Subsidiaries, dismissed within five (d5) Execution Business Days of this Agreement constitutes a direction by commencement; or (G) the Participant Lenders that U.S. Issuer, the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatCanadian Issuer, notwithstanding anything Holdings, or the Subsidiaries pays any management, sponsor or consulting fees to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower stockholders of Masonite Holding Corp. or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementtheir affiliates.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Forbearance Agreement (Masonite International Inc.)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 15, 2020, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted, during the Forbearance Period, to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, or an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under the respective Applicable Agreements), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the respective Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Sources: Forbearance Agreement (AG Mortgage Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders agree Each Company hereby acknowledges and agrees that until the Designated Defaults have occurred and are continuing, each of which entitles each Creditor Party to exercise its rights and remedies under the Financing Agreements, applicable law or otherwise. No Creditor Party has waived, presently intends to waive and may ever waive such Designated Defaults and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver; provided, however, that the Creditor Parties temporarily waive, through the expiration of the Forbearance PeriodPeriod (as defined below), any Events of Default arising solely from the Participant Lenders will temporarily forbear Company’s failure to timely deliver to Agent audited year end financial statements for its fiscal year ended December 31, 2008 as a result of not having obtained an audit report of its independent certified public accountants with respect thereto (subject “Audit Report”) and the Company’s resulting failure to file with the SEC its Form 10-K for such fiscal year solely on account of not having obtained the Audit Report. Each Company hereby acknowledges and agrees that each Creditor Party has the presently exercisable right to declare the Obligations to be immediately due and payable under the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawFinancing Agreements.
(b) Upon a Termination EventIn reliance upon the representations, warranties and covenants of each Company contained in this letter agreement (this “Agreement”), and subject to the agreement terms and conditions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, this Agreement (including, without limitation, the Specified Defaults.
(cconditions to effectiveness set forth in Section 4 below) For the avoidance of doubtand any agreements, nothing herein limits the right of the Administrative Agent documents or the Lendersinstruments executed in connection herewith, including during the Forbearance PeriodPeriod (as defined below), each Creditor Party will forbear from exercising its rights and remedies under the Financing Agreements and applicable law in respect of or arising out of any and all Designated Defaults. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever any Creditor Party’s right to take administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any action other Collateral to preserve or exercise rights or remedies against parties other than the Borrower and Obligations (as defined in each Financing Agreement in which such term is defined), in each case, in accordance with the Subsidiary Guarantors ("Third Party Rights")terms of the Financing Agreements. For purposes of the foregoingthis Agreement, the Borrower and term “Forbearance Period” shall mean the Subsidiary Guarantors acknowledge and agree that execution and delivery period commencing on the first date upon which all of the conditions to the effectiveness of this Agreement set forth in Section 4 below shall constitute have been satisfied to the making satisfaction of the Creditor Parties and ending on the earlier to occur of (i) June 3, 2009 and (ii) the occurrence of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Forbearance Default (including without limitation the Specified Defaultsas defined below).
Appears in 1 contract
Sources: Forbearance Agreement and Omnibus Amendment to Agreements (ProLink Holdings Corp.)
Forbearance. Subject to the terms and conditions set forth herein, from the date this Agreement is fully executed and delivered by the parties (the "Effective Date") through the earlier of (a) The Participant the date on which the Loan Parties fail to comply with the covenants contained in Section 7 of this Agreement, (b) the date of the commencement by the Borrower of a voluntary bankruptcy, insolvency, reorganization or other similar proceeding or the commencement of any similar non-voluntary case or proceeding with respect to the Borrower that remains undismissed or stayed for a period of 30 days following the date of filing, and (c) 12:00 noon (EST) on April 30, 2011 (the "Forbearance Period"), the Senior Lenders hereby agree to forbear from exercising any and all rights or remedies available under the Senior Loan Documents or applicable law as a result of the Specified Defaults, but only to the extent that until such rights and remedies arise solely as a result of the occurrence and continuation of the Specified Defaults; provided, however, that in each case, the Senior Lenders shall be free to exercise any or all rights and remedies arising on account of any Specified Default at the end of the Forbearance Period; provided further, that except as expressly set forth herein, this Agreement shall not operate as a waiver, amendment or modification of the Senior Loan Documents. Notwithstanding anything contained in the Senior Loan Documents or this Agreement to the contrary, the Borrower will be entitled to repay the Bridge Notes (other than with proceeds from the New Facility) during the Forbearance Period and that upon such repayment of the Bridge Notes, the Specified Default will be deemed cured and the Senior Lenders will not be entitled to exercise any rights or remedies by virtue of the Specified Default following the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Forbearance Agreement (Quantum Fuel Systems Technologies Worldwide, Inc.)
Forbearance. (a) The Participant Lenders agree So long as no Event of Default, other than the Existing Defaults, occurs or exists, subject to the terms and conditions set forth herein, Lender agrees that until the expiration of during the Forbearance Period, the Participant Lenders Lender will temporarily forbear not (subject x) exercise any default remedy available to the terms hereof) from the exercise of their default-related remedies Lender under the Credit Agreements, any Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective Document or applicable under law; (y) enforce collection from any Borrower or any Guarantor of any of the Loan Documents during the continuance of Obligations; or (z) foreclose on its security interest in any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall Collateral (as defined in all Loan Documents)
(a) Compliance with the terms of Section 13.3 of Loan Agreement are waived until the date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, but not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawlater than January 1, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law2009.
(b) Upon a Termination EventCompliance with terms of Sections 5.16 and 5.17 of Credit Agreement are waived until the date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandbut not later than January 1, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults2009.
(c) For To the avoidance extent that Borrower shall fail to repay the obligations owing on the 10% callable convertible promissory notes when due, compliance with Section 7.1(e) of doubtCredit Agreement shall be waived, nothing herein limits unless and until the right date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, but not later than January 1, 2009. Except as expressly provided herein, this Agreement does not constitute a waiver or release by Lender of the Administrative Agent any Obligations or the Lenders, including during the Forbearance Period, to take of any action to preserve or exercise rights or remedies against parties Event of Default other than the Borrower and Existing Defaults, or of any Event of Default which may arise in the Subsidiary Guarantors ("Third Party Rights"). For purposes of future after the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery date of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance Agreement. If Borrower does not comply with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower Agreement and the Subsidiary Guarantors acknowledge Loan Documents, as modified herein, Lender shall have no further obligations under this Agreement and agree that the agreement of the Participant Lenders hereunder shall be permitted to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of exercise at such Specified Defaults and that the Lenders expressly reserve all time any rights and remedies against Borrower as it deems appropriate in its sole and absolute discretion. Borrower understands that Lender has made no commitment and is under no obligation whatsoever to grant any additional extensions of time at the Administrative Agent and the Lenders now or may in the future have under any or all end of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Forbearance Period.
Appears in 1 contract
Sources: Amendment and Forbearance Agreement (Tri-S Security Corp)
Forbearance. (a) Each Company hereby acknowledges that (a) the Designated Default occurred on April 1, 2018 and is continuing and (b) the Forbearance Period provided for and as defined in the May 4th Forbearance and Amendment Agreement terminated on June 30, 2018, the occurrence of which entitles the Creditor Parties to exercise their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law.
(b) No Creditor Party has waived, presently does not intend to waive and may never waive such Designated Default and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver. Each Company hereby acknowledges that Creditor Parties have the presently exercisable right to declare the Liabilities to be immediately due and payable under the ▇▇▇▇▇▇ of the Purchase Agreement and the Related Agreements.
(c) Subject to satisfaction of the conditions of effectiveness set forth in Section 8 of this Amendment Agreement, during the period (the “Forbearance Period”) commencing on June 30, 2018 and ending on the earlier to occur of (a) September 30, 2018 and (b) the occurrence of any Forbearance Default (as defined in Section 3(e) of this Amendment Agreement), Creditor Parties will forbear from exercising their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law solely in respect of the Designated Default. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever Creditor Parties’ rights to administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any other collateral to the Liabilities, in each case, in accordance with the terms of the Purchase Agreement and the Related Agreements. The Participant Lenders agree that until Creditor Parties may consider extending the expiration date of the Forbearance Period, but any such extension will be determined by the Creditor Parties in their sole and absolute discretion and, if provided at all, shall only be made on terms and conditions satisfactory to the Creditor Parties in their sole and absolute discretion. Among other factors which the Creditor Parties may consider in determining whether to extend the expiration date of the Forbearance Period are the Companies’ financial performance, the Companies’ compliance with the June 30, 2018 and September 30, 2018 “Operating Margin” financial covenants under Section 8.23(a), the occurrence of no Events of Default (other than the Designated Default) and the Creditor Parties’ receipt of evidence satisfactory in all respects to the Creditor Parties demonstrating that satisfactory progress (as determined by the Creditor Parties in their sole and absolute discretion) has been made by the Companies in connection with their diligent and good faith efforts to refinance the Liabilities by September 30, 2018. No such extension, if provided at all, shall be effective unless in a writing executed by the Creditor Parties and the Companies, and acknowledged and agreed to by the Guarantors.
(d) Upon the termination of the Forbearance Period, the Participant Lenders will temporarily agreement of Creditor Parties to forbear (subject with respect to the terms hereof) from Designated Default shall automatically and without further action terminate and be of no further force and effect, it being expressly agreed that the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability effect of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise termination will be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply permit Creditor Parties to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under (i) exercise such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under immediately without any further notice, passage of time or all forbearance of any kind and (ii) charge the Default Interest Rate (as defined in Section 1.7 of the Loan Documents and/or applicable lawNote) retroactively to April 1, including2018, without limitation, their respective rights which such Default Interest Rate charges shall be due and remedies in connection with any or all of payable on the Defaults and Events of Default, including, without limitation, the Specified Defaults.
next Interest Payment Date (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary as defined in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this AgreementNote).
(e) The Borrower and occurrence of any Event of Default (other than the Subsidiary Guarantors acknowledge and agree that the agreement Designated Default) shall constitute a Forbearance Default. As of the Participant Lenders hereunder date hereof, neither the Companies nor the Creditor Parties have any actual knowledge of any Events of Default other than the Designated Default.
(f) Subject only to forbear from exercising Section 3(c) of this Amendment Agreement, Creditor Parties reserve the right, in their default-related remedies with respect sole discretion, to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under exercise any or all of their rights and remedies under the Loan Documents and/or Purchase Agreement, the Related Agreements and applicable law in connection with all Defaults and Events as a result of any Event of Default (including without limitation other than the Specified DefaultsDesignated Default), and no Creditor Party has waived any of such rights or remedies, and nothing in this Amendment Agreement, and no delay on their part in exercising any such rights or remedies, should be construed as a waiver of any such rights or remedies.
Appears in 1 contract
Sources: Forbearance and Fourth Amendment Agreement (usell.com, Inc.)
Forbearance. (a) The Participant Administrative Agent, the Lenders and the Issuing Bank agree that until the expiration in favor of the Forbearance Period, Borrower that they shall refrain from taking any action to foreclose or recover the Participant Lenders will temporarily forbear “Collateral” (subject as defined in the Pledge Agreement) or otherwise initiate collection proceedings against the Borrower with respect to the terms hereof) Pledge Defaults from the exercise date hereof through and including the earlier of their default-related remedies (i) March 31, 2015, or (ii) the occurrence of an Event of Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Agreement (Licensing) (other than a Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree Default that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any have waived in writing and all of their respective rights a Pledge Default) (the “Forbearance Period”). The Borrower acknowledges and remedies under any or all agrees that, notwithstanding the foregoing, (a) each of the Loan Documents and/or Administrative Agent, the Lenders and the Issuing Bank reserves the right to enforce each and every term of the Pledge Agreement (other than remedies resulting from a Pledge Default during the Forbearance Period), and is under no duty or obligation of any kind or any nature to grant the Borrower any additional period of forbearance beyond the Forbearance Period; (b) each action of the Administrative Agent, the Lenders and the Issuing Bank in entering into this Agreement shall not be construed as a waiver or relinquishment of, or estoppel to assert, any of Administrative Agent’s rights under the Pledge Agreement or applicable law, including, without limitation, their respective rights ; and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For each action of the avoidance of doubtAdministrative Agent, nothing herein limits the Lenders and the Issuing Bank in entering into this Agreement is without prejudice to the right of the Administrative Agent or Agent, the Lenders, including during Lenders and the Issuing Bank to pursue any and all remedies available to any of them upon expiration of the Forbearance Period, to take any action to preserve Period or exercise rights immediately upon the occurrence of an Event of Default under the Credit Agreement (Licensing) or remedies against parties a “Default” under the Pledge Agreement (other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsPledge Default).
Appears in 1 contract
Forbearance. Subject to, and effective as of, the Forbearance Effective Date:
(a) The Participant Lenders agree Each Holder hereby agrees that until during the expiration Forbearance Period it will not (x) take any Remedial Action with respect to the Notes in connection with the Existing Default or the Payment Default or (y) sell, pledge, hypothecate or otherwise transfer any Notes, except to (A) a purchaser or other entity who agrees in writing with the transferor (with a copy to and for the benefit of the Forbearance PeriodM▇▇▇▇▇ Companies) prior to such transfer to be bound by all of the terms of this Agreement with respect to the relevant Notes being transferred to such purchaser, (B) a party who is already a signatory hereto, (C) an entity that, as of the Participant Lenders will temporarily forbear date hereof, was, and as of the date of transfer, continues to be an entity that controls, is controlled by or is under common control with the transferor; provided, however, that in the case of either (B) or (C) above, such party or entity, as the case may be, shall automatically and without further action be subject to the terms hereof) of this Agreement and deemed a party hereto. This Agreement shall in no way be construed to preclude any Holder from acquiring additional Notes, to the extent permitted by applicable law. However, such Holder shall, automatically and without further action, be subject to this Agreement with respect to any Notes so acquired. The foregoing limited forbearance shall not be construed to impair the ability of the Holders or the Indenture Trustee to exercise of their default-related any rights or remedies under the Credit AgreementsIndenture or take any Remedial Action at any time after the Forbearance Period (regardless of whether or not such Remedial Action relates to actions taken or payments received during the Forbearance Period), Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsfor Defaults or Events of Default other than the Existing Default and the Payment Default, limitationsand nothing herein shall restrict, restrictions impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced Holders’ rights under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawthis Agreement.
(b) Upon a Termination EventThe Holders’ forbearance, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies as provided herein, shall immediately terminate cease on the Forbearance Termination Date without the requirement of for any demandnotice, presentment, protest demand or notice presentment of any kind, all of which the Borrower and the Subsidiary Issuers and Guarantors hereby waive. The Borrower at such time shall be obligated to comply with and perform all terms, conditions and provisions of the Indenture and the Subsidiary Guarantors agree that Notes without giving effect to the Administrative Agent forbearance set forth herein, and the Lenders Indenture Trustee and the Holders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawremedies, including, including without limitation, their respective rights and remedies in connection with the Existing Default, the Payment Default (if applicable) and any other Defaults or all of the Defaults and Events of Default, including, without limitation, Default under the Specified DefaultsIndenture or rights under this Agreement.
(c) For The Holders’ forbearance is further expressly subject to and conditioned upon the avoidance M▇▇▇▇▇ Companies’ strict compliance with each and every material term and provision of doubtthis Agreement, nothing herein limits and, except with respect to the right Existing Default and the Payment Default, the M▇▇▇▇▇ Companies’ strict compliance with each and every term and provision of the Administrative Agent or the LendersIndenture and Notes, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower except as such terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of provisions are modified by this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersAgreement.
(d) Execution Each of this Agreement constitutes a direction the Holders acknowledges that it will request that the Indenture Trustee not take any Remedial Action, including without limitation, any action to accelerate the Notes during the Forbearance Period. In the event that the Indenture Trustee takes any action to declare all of the Notes immediately due and payable pursuant to Section 6.2 of the Indenture during the Forbearance Period solely due to the Existing Default or the Payment Default, the Holders agree, pursuant to Section 6.2 of the Indenture, to promptly rescind and cancel such acceleration; provided, however, that if the Holders rescind and cancel such acceleration by the Participant Lenders Indenture Trustee, each Holder shall defer its right to receive any cure of the Payment Default until the end of the Forbearance Period; provided, further, however, that such rescission and deferral shall be of no further force and effect to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Period with respect to this Agreement or the Specified Defaults shall not constitute a waiver period identified in Section 2 of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Waiver No. 3 has ended.
Appears in 1 contract
Sources: Forbearance Agreement (Morris Publishing Finance Co)
Forbearance. (a) The Participant Lenders agree that until a. On the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (terms and subject to the terms hereof) conditions set forth in this Forbearance Agreement, the Administrative Agent and the Lenders agree to forbear from the exercise of their default-related remedies taking any action or exercising any right or remedy at law or in equity permitted to be taken or exercised by them under the Credit Agreements, Agreement or the other Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely under applicable law with respect to the extent the availability Existing Events of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply Default during the period (the “Forbearance Period with all provisionsPeriod”) beginning on the Effective Date (as hereinafter defined) and ending on the Maturity Date; provided, limitationshowever, restrictions or prohibitions that would otherwise be effective or applicable under such forbearance shall extend only to the Existing Events of Default and not to any of the Loan Documents during the continuance of any other Default or Event of Default; provided further that Default now existing or occurring after the agreement of the Participant Lenders temporarily to forbear Effective Date and shall not apply to nor preclude in any remedy available to way or manner restrict the Administrative Agent or the Lenders in connection from exercising any rights or remedies they may have with any proceeding commenced under any bankruptcy respect to the Existing Events of Default from and after the expiration or insolvency law, including without limitation, termination of the Forbearance Period or with respect to any relief in respect other Default or Event of adequate protection or relief from Default at any stay imposed under such law.
(b) Upon a Termination Eventtime. The Forbearance Period shall automatically terminate and expire on the Maturity Date without any requirement for notice to the Borrowers, the agreement Borrower Representative or any other Loan Party or any other Person and all rights, remedies and privileges of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any under the Credit Agreement and all of their respective rights and remedies under any or all of the other Loan Documents and/or applicable lawshall be available to, includingand capable of exercise by, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding b. Notwithstanding anything to the contrary set forth in the Credit AgreementsAgreement or any other Loan Document, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that Loan Parties, the Administrative Agent and the Lenders now agree that from and after the date hereof, upon the occurrence and during the continuance of a Default or may Event of Default that, in each case, is not an Existing Event of Default, no Lender shall have any obligation to make Revolving Loans pursuant to the future have under any or all Credit Agreement.
c. The Administrative Agent and the Lenders agree that, notwithstanding the occurrence and continuance of the Loan Documents and/or applicable law in connection with all Defaults and Existing Events of Default (including without limitation and the Specified Defaults)provisions of Section 2.13(d) of the Credit Agreement, during the Forbearance Period, interest shall accrue on the Loans and any other amounts outstanding under the Credit Agreement at the non-default rate set forth in the Credit Agreement.
d. Notwithstanding any other term or provision of the Credit Agreement to the contrary, beginning on the Effective Date and each month thereafter during the Forbearance Period, interest on all Loans shall be payable in arrears on the last Business Day of each month.
Appears in 1 contract
Forbearance. 1. For the period (the “Forbearance Period”) beginning as of the date first above written (the “Commencement Date”) and ending on the earlier to occur of (a) 5:00 p.m., New York time, on October 17, 2008, and (b) termination of this forbearance as provided herein (the “Forbearance Termination Date”), the Agent and the Lenders, without waiving, curing or ceasing the continuance of the Specified Events of Default, hereby agree to forbear from the exercise of any of their rights and remedies available under the Credit Agreement and the Loan Documents on account of the Specified Events of Default. Neither the Agent nor the Lenders shall have any obligation to make any Loans, issue, extend or renew, and the Borrower shall not request the issuance, extension or renewal of, any Letters of Credit or otherwise extend credit to the Borrower under the Credit Agreement during the Forbearance Period. The Participant Lenders agree that until the expiration of have considered and will continue to consider during the Forbearance Period, in their sole discretion, whether to honor borrowing requests or requests for issuances of Letters of Credit. Any past or future Loans to, or issuances of Letters of Credit for the Participant account of, the Borrower should not be considered an agreement, express or implied, on the part of the Lenders will temporarily forbear (subject to the make any additional Loans or to issue any additional Letters of Credit or an agreement to waive any terms hereof) from the exercise of their default-related remedies under the Credit AgreementsAgreement in the future, Loan Documents or otherwiseincluding, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, the satisfaction of conditions precedent to any relief in funding. The Agent’s and Lenders’ forbearance provided for herein shall be effective only with respect to the Specified Events of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault and shall automatically terminate and cease to be of force and effect, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies as may be available under any or all of the Loan Documents and/or Credit Agreement and under applicable law, including, without limitation, their respective rights and remedies in connection with upon or after the occurrence of any other Default or all Event of Default under the Defaults and Credit Agreement or any Loan Document (other than the Specified Events of Default) or a default under the terms of this Agreement (individually a “Forbearance Default” and, including, without limitationcollectively, the Specified “Forbearance Defaults”).
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during 2. During the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than and provided that no Forbearance Default has occurred and that the Borrower terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery conditions of this Agreement shall constitute are satisfied, the making Lenders agree that they will not accelerate, nor direct the Agent to accelerate, the indebtedness owed to the Lenders under the Credit Agreement or otherwise exercise any of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights their rights and remedies, in each case, as a result of the Administrative Agent and the Lenders.
(d) Execution Specified Events of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatDefault outlined herein; provided, notwithstanding anything to the contrary in the Credit Agreementshowever, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may reserve all rights to charge the Default Rate of interest on all outstanding Obligations in the future have under any or all accordance with Section 1.5(d) of the Loan Documents and/or applicable law in connection with all Defaults Credit Agreement from and after the date of the occurrence of the Specified Events of Default.
3. During the Forbearance Period, and provided that no Forbearance Default (including without limitation has occurred and that the Specified Defaults).terms and conditions of this Agreement are satisfied, the Agent agrees that it will neither establish any new Reserves which are not in effect on the Commencement Date nor increase any existing Reserves above the amount of such Reserves which are in effect on the Commencement Date. As of September 29, 2008 Page 3 of 13
Appears in 1 contract
Forbearance. a. Borrower hereby requests that Lender forbear from (ai) proceeding to foreclose on its security interests, and (ii) otherwise exercising any or all of its rights and remedies in law or equity, in order to allow Borrower time to repay the obligations of Borrower to Lender under the Revolving Line and the Loan Documents. Lender is willing to forbear until May 1, 2014 (“Forbearance Period”), if and only if
(1) Such forbearance is without waiver of any term, covenant, or condition to be performed or satisfied by Borrower to the Loan Documents, except for the Existing Default;
(2) Borrower makes full, timely, and punctual performance of each of the matters hereinafter set forth and does not do or fails to do anything that would constitute a breach of this Agreement, the documents and instruments executed in connection with this Agreement, or a further breach of the Loan Documents; and
(3) All conditions precedent provided for herein are first satisfied.
b. Borrower acknowledges and agrees that but for Lender entering into this Agreement with Borrower, Lender would diligently pursue all of its rights and remedies under the Loan Documents, at law and in equity, against Borrower.
c. If an Event of Default (as defined in Section 16 herein) occurs under any term, condition, or performance of this Agreement, Lender may declare the entire amount of the Loan Balance less any amount paid pursuant to this Agreement to be immediately due and payable, plus accrued and unpaid interest and default fees thereon with such interest calculated as of the date of this Agreement.
d. The Participant Lenders agree obligations of Borrower to Lender shall continue to be secured by, without limitation, the Collateral and the IP Collateral.
e. Borrower hereby acknowledges, confirms and agrees that until upon the expiration of the Forbearance Period, Lender may declare the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any amount of the then outstanding and unpaid Loan Documents during the continuance of Balance will be immediately due and payable in full, together with any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude accrued and unpaid interest thereon, and any remedy available to the Administrative Agent or the Lenders and all unpaid fees, costs and/or unreimbursed expenses incurred by Lender in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Documents.
Appears in 1 contract
Sources: Forbearance and Modification Agreement (Rainmaker Systems Inc)
Forbearance. (a) The Participant Notwithstanding anything to the contrary in the Credit Agreement and solely upon the terms and subject to the conditions of this Agreement, from the date hereof until December 31, 2023 (the “Forbearance Period”), the Administrative Agent and Lenders agree that until to forbear from exercising any of their rights and remedies against the Borrower solely with respect to the occurrence of the Specified Default. Notwithstanding anything to the contrary herein, the Forbearance Period shall terminate automatically and without notice of termination immediately upon the occurrence of any Default or Event of Default (other than the Specified Default).
(b) Upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders and ▇▇▇▇▇▇▇ hereunder to forbear from exercising their default-related respective rights and remedies with respect to the Specified Default shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaives. The Borrower and the Subsidiary Guarantors agree agrees that any or all of the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Credit Agreement, any other Loan Documents Document and/or applicable law, including, without limitation, including their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, respect to the Specified DefaultsDefault.
(c) For This Section 4 of this Agreement is limited in nature and nothing contained in this Amendment is intended, or shall be deemed or construed, to (i) constitute a waiver of the avoidance Specified Default or any existing or future Defaults or Events of doubtDefault (including any Event of Default arising from the Specified Default) or compliance with any term or provision of the Loan Documents or at law or in equity, nothing herein limits (ii) establish a custom or course of dealing between the right Borrower, on the one hand, and the Administrative Agent and/or any Lenders, on the other hand, or (iii) waive, alter or impair the obligations or any of the rights or remedies of the Administrative Agent or the LendersLenders under the Loan Documents, including during the Forbearance Period, to take any action to preserve at law or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersin equity.
(d) Execution of As consideration for the Lenders entering into this Agreement constitutes a direction by Amendment and providing the Participant forbearance pursuant to this Section 4, the Borrower agrees to pay to the Lenders that the Administrative Agent act hold Tranche A Term Loans, on a ratable basis in accordance with its terms. Each Participant Lender agrees thattheir proportional share of the Tranche A Term Loans, notwithstanding anything a forbearance fee in the aggregate amount of $5,000,000, which shall be paid in kind and automatically added to the contrary in outstanding principal amount of the Credit Agreements, Tranche A Term Loans on the Administrative Agent Second Amendment Effective Date (the “Forbearance Fee”). Such fee shall be deemed fully earned and paid on the Second Amendment Effective Date and shall not be required refundable for any reason whatsoever and shall be in addition to act if directed against the Borrower any other fees, costs and expenses payable hereunder or the Subsidiary Guarantors if such action is contrary pursuant to the terms Loan Documents. From and after the date hereof, the Forbearance Fee shall constitute principal of this Agreement.
(e) the Tranche A Term Loans for all purposes under the Loan Documents. The Borrower and the Subsidiary Guarantors acknowledge each Obligor acknowledges and agree agrees that the agreement Forbearance Fee is provided in good and valuable consideration of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent this Amendment and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)forbearance contemplated by this Section 4.
Appears in 1 contract
Sources: Credit Agreement and Guaranty and Revenue Interest Financing Agreement (Impel Pharmaceuticals Inc)
Forbearance. (a) The Participant Lenders Obligors hereby agree that until but for the expiration forbearance of the Forbearance PeriodBank set forth below, the Participant Lenders will temporarily forbear (which is subject to the satisfaction of the terms hereofand conditions set forth herein, the Bank would be entitled to pursue it rights and remedies for the enforcement of the Obligors’ obligations under the Loan Documents. The Obligors further agree that (i) the Existing Events of Default are not cured or waived by reason of the Bank’s execution of this Agreement and (ii) the Acceleration shall not be affected by the forbearance of Bank set forth below. The Bank is only agreeing in this Agreement to forbear from the exercise of their default-related its rights and remedies under which may arise or have arisen by virtue of the Credit AgreementsExisting Events of Default, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability upon termination of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with (as hereinafter defined), the Bank shall remain entitled to pursue any and all provisions, limitations, restrictions of its rights and remedies which may arise or prohibitions that would otherwise be effective or applicable under any have arisen by virtue of the Loan Documents during the continuance of any Default or Event Existing Events of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon The Bank agrees that for a period (the “Forbearance Period”) commencing on the Effective Date and ending on the Forbearance Termination EventDate (as hereinafter defined), the agreement Bank will not commence any Foreclosure Proceedings as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately Existing Events of Default. The Bank’s forbearance under this Agreement will automatically terminate without any notice to the requirement Borrower Parties or any other Person on such date (the “Forbearance Termination Date”) being the earliest of (i) 4:59 p.m., (Houston, Texas time) on December 28, 2006, (ii) the occurrence of any demand, presentment, protest default or notice event of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies default under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of (other than the Defaults and Existing Events of Default), including, without limitation(iii) the date on which any of the Forbearance Conditions described in Section 5 below shall fail to be satisfied and (iv) the date on which any of the Borrower Parties shall fail to satisfy any of their obligations or covenants under this Agreement or any representation or warranty made by any Borrower Party in this Agreement fails to be true and correct in any material respect. On the Forbearance Termination Date, the Specified DefaultsBank’s agreement hereunder to forebear from exercising its remedies under the Loan Documents with respect to the Existing Events of Default shall automatically cease and terminate and be of no further force and effect.
(c) For Notwithstanding the avoidance provisions of doubtthis Agreement, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, Bank is entitled to take any and all action as may be necessary and appropriate to preserve perfect, protect and defend the priority of any liens or exercise rights security interests granted to it pursuant to the Loan Documents against the claims and actions of any other creditors (including any bankruptcy trustee) and to make such filings as may be necessary and appropriate to insure or remedies against parties other than maintain the Borrower priority and perfection of such liens. No failure on the Subsidiary Guarantors ("Third Party Rights"). For purposes part of the foregoingBank to exercise, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement no delay in exercising, any right or remedy hereunder shall constitute the making operate as a waiver of any necessary demand such right or the giving remedy nor shall any single or partial exercise of any necessary notice for purposes of preserving and/or permitting right or remedy hereunder preclude any other or further exercise thereof or the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsother right or remedy. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent herein provided are cumulative and the Lenders now not exclusive of any rights or may in the future have under any or all of the Loan Documents and/or remedies provided by applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Sources: Supplemental Limited Forbearance Agreement (Pizza Inn Inc /Mo/)
Forbearance. (a) The Participant Lenders agree that until In reliance upon the expiration representations, warranties and covenants of the Borrower contained in this Forbearance PeriodAgreement, the Participant Lenders will temporarily forbear (and subject to the terms hereofand conditions of this Forbearance Agreement, Lender agrees that, subject to the terms and conditions contained herein, during the period commencing on the Forbearance Effective Date and ending on the earlier of the following dates (the earliest of such dates being referred to herein as the “Forbearance Termination Date”):
(i) the date of the occurrence of any Forbearance Termination Event or any Event of Default, other than the Existing Events of Default, and (ii) September 16, 2025, Lender shall forbear from the exercise exercising any of their default-related its rights and remedies arising under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely applicable law due to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any occurrence of the Loan Documents during the continuance of any Default or Event Existing Events of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) So long as no Forbearance Termination Event or any Event of Default, other than the Existing Events of Default, has occurred, the Forbearance Termination Date shall be extended until (i) October 16, 2025; provided, that, Borrower shall have delivered to Lender, on or before August 31, 2025, evidence in form and substance acceptable to Lender that Borrower has maintained minimum EBITDA, for period commencing on May 1, 2025 through and including July 31, 2025, equal to or greater than $300,000 and (ii) November 15, 2025; provided, that, Borrower shall have delivered to Lender, on or before September 30, 2025, evidence in form and substance acceptable to Lender that Borrower has maintained, minimum EBITDA for period commencing on May 1, 2025 through and including August 31, 2025, equal to or greater than $300,000;
(c) Upon a the Forbearance Termination EventDate, the agreement of the Participant Lenders hereunder Lender to forbear from exercising their default-related remedies with respect to the Existing Events of Default shall automatically and without further action terminate and be of no force and effect, it being understood and agreed that the effect of such termination will be to permit Lender to immediately terminate exercise, without the requirement of any demand, presentment, protest further notice or notice forbearance of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or Agreement and other Loan Documents, applicable law, including, without limitation, their respective rights and remedies in connection law or otherwise with any or all of respect to the Defaults and Existing Events of DefaultDefault or any other Event of Default which shall exist or shall have occurred and be continuing at such time, including, including without limitation, the Specified Defaults.
(c) For the avoidance right to require payment in full in cash of doubt, nothing herein limits the right of the Administrative Agent all Obligations or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersportion thereof.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all No termination of the Loan Agreement or other Loan Documents and/or applicable law shall relieve or discharge Borrower of its duties, covenants and obligations under the Loan Documents until all Obligations have been indefeasibly paid and satisfied in connection with all Defaults full in immediately available funds on terms and Events conditions acceptable to Lender. Borrower hereby expressly waives any right to receive notification under Section 9-611 of Default (including without limitation the Specified Defaults)UCC or otherwise of any disposition of any Collateral by Lender or its designees, and waives any rights under Sections 9-620(e) and 9-623 of the UCC.
Appears in 1 contract
Sources: Forbearance Agreement and Amendment No. 2 to Loan Agreement (Starco Brands, Inc.)
Forbearance. (a) The Participant Lenders agree that Upon the effectiveness of this Agreement and until the expiration of Forbearance Termination Date (defined below) (the "Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof") from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders shall forbear from making demand upon the Notes or pursuing their remedies under the Credit Agreement, the Security Documents or the other Loan Documents. Additionally, the Lenders shall continue to advance Revolving Credit Loans to the Borrower, subject to the other conditions contained in the Credit Agreement PROVIDED that during the period from November 30, 2001 to December 14, 2001, the sum of the outstanding Revolving Credit Loans, the Maximum Drawing Amount and the Unpaid Reimbursement Obligations may exceed the Maximum Amount (but not any other component of Adjusted Availability) so long as such sum does not exceed $350,000,000; from December 15, 2001 to December 27, 2001, the sum of the outstanding Revolving Credit Loans, the Maximum Drawing Amount and the Unpaid Reimbursement Obligations may exceed the Maximum Amount (but not any other component of Adjusted Availability) so long as such sum does not exceed $345,000,000; and thereafter, the sum of the outstanding Revolving Credit Loans, the Maximum Drawing Amount and the Unpaid Reimbursement Obligations may not exceed the Maximum Amount (i.e. $337,000,000). If at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all the sum of the Loan Documents and/or applicable lawoutstanding Revolving Credit Loans, includingthe Maximum Drawing Amount and the Unpaid Reimbursement Obligations exceeds the Maximum Amount, without limitationnotwithstanding the provisions hereof, their respective rights and remedies in connection with any or all of the Defaults and Events an Event of Default, includingand as applicable, without limitation, the Specified Defaults.
(c) For the avoidance an Identified Event of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during Default shall have occurred. During the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Revolving Credit Loans will bear interest at the rate specified in Section 5.10.2 of the Credit Agreement; however, the Agents and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and Lenders agree that execution such increase (2%) shall be fully earned and delivery accrue on a daily basis, but shall be payable on the earliest of this Agreement shall constitute (a) ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the making date of any necessary demand or confirmation of a Reorganization Plan, (c) the giving of any necessary notice for purposes of preserving and/or permitting date the exercise of any such Third Party Rights of the Administrative Agent Agents and the Lenders.
, after stay termination exercise relief from stay or otherwise pursue their remedies against their Collateral, or (d) Execution the date any of the Cases are converted to Chapter 7. Nothing contained in this Agreement constitutes forbearance agreement shall be construed to imply a direction by willingness on the Participant Lenders that part of any Lender to grant any similar or other future forbearance or waiver of any of the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in terms and conditions of the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Agreement or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementany other Loan Documents.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Debtor in Possession Revolving Credit Agreement (Republic Technologies International Holdings LLC)
Forbearance. The Company and ▇▇▇▇▇ acknowledge the existence of the Specified Defaults, including the failure of Facility Substantial Completion and Final Completion to be achieved. Subject to the terms and conditions set forth herein, throughout the period commencing on the date of this Agreement and ending on the applicable date set forth in the first sentence of Section 6 (the “Forbearance Period”), the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Lender) hereby agree to forbear from exercising any and all available default rights and remedies under the Agreement, the Notes. the Account and Security Agreement, the deeds of trust creating the Liens described in Article XI of the Account and Security Agreement, the Class B Investors Pledge Agreement and the Special Interest Investors Pledge Agreement and at applicable law as the result of the occurrence and continuance of the Specified Defaults. The Company and ▇▇▇▇▇ acknowledge and agree that the foregoing agreement to forbear exercising such default rights and remedies throughout the Forbearance Period shall not constitute a waiver of the Specified Defaults or a waiver of any other Credit Agreement Event of Default or Credit Agreement Default that is not waived by Section 3 of this Forbearance Agreement, and that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent expressly reserve all such default rights and remedies. The Company and ▇▇▇▇▇ further acknowledge and agree that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent may exercise any and all such default rights and remedies at any time following the earliest to occur of (a) The Participant Lenders agree that until the expiration of the Forbearance Period, (b) the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply occurrence during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any additional Credit Agreement Default or Credit Agreement Event of Default; provided further that the agreement , other than those potential Credit Agreement Defaults or Credit Agreement Events of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Default expressly waived in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Section 3 of adequate protection or relief from any stay imposed under such law.
this Forbearance Agreement (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, any default under this Forbearance Agreement), (c) any of MLE, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“MLP”), UTC, the Company, ▇▇▇▇▇ or any of their respective rights and remedies in connection with Affiliates takes any or all of action against the Defaults and Events of DefaultFacility, any other collateral for the Advances (including, without limitation, the Specified Defaults.
(c) For additional collateral described in Article XI of the avoidance Account and Security Agreement), the Company or ▇▇▇▇▇ or any of doubtits Affiliates which the Administrative Lender believes would materially adversely affect the interests of the Lenders, nothing herein limits the right of Administrative Lender, the Administrative Agent or the LendersCollateral Agent, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary aggregate balance in the Credit AgreementsSecurity Accounts under the Account and Security Agreement being less than $175,000 at any time from February 1 through February 24, the Administrative Agent shall not be required to act if directed against the Borrower 2011 or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
less than $250,000 at any time thereafter (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement any of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute events described in clause (a), (b), (c) or (d) a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults“Forbearance Termination Event”).
Appears in 1 contract
Sources: Amendment, Consent and Forbearance Agreement (Raser Technologies Inc)
Forbearance. Upon the satisfaction of each of the conditions precedent set forth in Section 5 hereof, the Holders hereby agree, for so long as (a) The Participant Lenders agree that until no Default or Event of Default (other than the expiration 2000 Forbearance Events and the 2001 Forbearance Events, each as defined below), has occurred and is continuing and (b) the Company complies with the requirements contained in this Section 1, (x) to forbear from enforcing any of its rights and remedies under Section 12.2 of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents Note Purchase Agreements or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan other Note Documents during arising solely as a result of the continuance occurrence of any of the 2000 Forbearance Events or the 2001 Forbearance Events and (y) the Holders will not demand accelerated payment of the obligations under Section 12.1 of the Note Purchase Agreements or otherwise cause any of such obligations to become immediately due and payable solely as a result of the occurrence of any of the 2000 Forbearance Events or the 2001 Forbearance Events, except that the Company shall in any event continue to be required to make any and all payments that are provided for in the Note Documents and this Amendment when and as the same are due and payable pursuant to the terms of the Note Documents and this Amendment. So long as no Default or Event of Default, other than the 2000 Forbearance Events or 2001 Forbearance Events, has occurred and is continuing, nothing herein shall be deemed to prevent the Company from exercising any right or taking any action otherwise permitted by the Note Purchase Agreements or the other Note Documents, which such right or action is conditioned upon the absence of any Default or Event of Default; provided further that . The forbearances contained in this Section 1 shall be contingent on the agreement Company's compliance with the following requirements: The Company shall not permit, at any time following January 1, 2001, Forbearance Net Finance Assets to be less than the sum of Forbearance Senior Debt and SBA Debt, as evidenced by a Borrowing Base Certificate prepared in accordance with Section 6.1(i) of the Participant Lenders temporarily to forbear Bank Loan Agreement and the Company shall not apply permit the Excess Amount to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawexceed (a) $6,700,000 from January 1, including without limitation2001 through January 31, to any relief in respect of adequate protection or relief from any stay imposed under such law.
2001, (b) Upon a Termination Event$5,700,000 from February 1, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand2001 through February 28, presentment2001, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For $5,000,000 from March 1, 2001 through March 31, 2001, or (d) $0 as of April 1, 2001 and thereafter. The Company shall deliver a copy of such Borrowing Base Certificate to the avoidance of doubt, nothing herein limits Holders substantially concurrently upon delivery thereof to the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights")Banks. For purposes of the foregoinghereof, the Borrower and following terms shall have the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).following meanings:
Appears in 1 contract
Sources: First Amendment Agreement (Medallion Financial Corp)
Forbearance. (a) The Participant Lenders Notwithstanding the Forbearance Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Forbearance Defaults (other than as set forth in the following sentence) and during the Forbearance Period, to the extent permitted by the Loan Documents, Lender shall be entitled to cure Mortgage Loan Events of Default and make any protective advances (except to the extent that Mortgage Lender is forbearing from taking action with respect to such Forbearance Defaults pursuant to a forbearance agreement acceptable to Lender). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower such forbearance set forth in Section 4 below and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during Mortgage Lender has waived the Forbearance Period with all provisions, limitations, restrictions or prohibitions Defaults that would otherwise be effective or applicable under any arise as a result of the Mortgage Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventdefaults, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Forbearance Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults)conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Sources: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. 1.1 Subject to the terms and conditions set forth herein, each Forbearance Party hereby agrees, during the period from the time this Agreement becomes effective pursuant to Section 2 until 9:00 a.m. New York time on March 31, 2004 (a) The Participant Lenders agree that until such period, as it may be prematurely terminated at the expiration option of the Facility Insurer or the Agent pursuant to the terms of this Agreement, the "Forbearance Period"), to forbear temporarily from exercising its rights, on account of the Dilution Trigger Event, to declare an Amortization Commencement Date or to terminate Maxtor as Servicer under the Loan Agreement. This agreement to forbear on account of the Dilution Trigger Event as provided herein expires at the conclusion of the Forbearance PeriodPeriod and any or each Forbearance Party may, the Participant Lenders will temporarily forbear (subject at any time thereafter, exercise any of its rights and remedies with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Dilution Trigger Event to the same extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall as if this Agreement did not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawexist, including without limitation, the right to declare the occurrence of the Amortization Commencement Date, terminate Maxtor as Servicer, and exercise any remedies set forth in the Transaction Documents which are exercisable from and after the Amortization Commencement Date.
1.2 The specific agreement to forbear described in Section 1.1 above applies only to the Dilution Trigger Event and not to any relief other facts or circumstances giving rise to an Early Amortization Event or Servicer Default which may have occurred or may hereafter occur, and nothing in respect this Agreement shall be deemed to restrict any right or remedy any Forbearance Party may have on account of adequate protection any such other Early Amortization Event or relief from any stay imposed under such law.
(b) Upon a Termination EventServicer Default, including the agreement right to declare the occurrence of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may Amortization Commencement Date at any time thereafter proceed during the Forbearance Period on account of any such other Early Amortization Event or to exercise terminate the Servicer during the Forbearance Period on account of any and all such other Servicer Default. The Forbearance Parties are not hereby waiving the existence of their respective rights and remedies under any Early Amortization Event or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Servicer Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing and are merely agreeing to forbear as provided herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period. Except for the forbearance expressly set forth above in Section 1.1, to take any action to preserve or exercise rights or remedies against parties other than each Forbearance Party expressly reserves each and every right and remedy it has under the Borrower Transaction Documents and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingunder applicable law, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of nothing in this Agreement shall be deemed to constitute the making a waiver of any necessary demand Early Amortization Event or Servicer Default whether now existing or hereafter arising, or, constitute a waiver of, or, except for the giving of forbearance expressly set forth above in Section 1.1, forbearance of, any necessary notice for purposes of preserving and/or permitting right or remedy the exercise of Forbearance Parties may have under any such Third Party Rights of the Administrative Transaction Documents or applicable law.
1.3 The Borrower acknowledges and agrees that, due to the existence of the Dilution Trigger Event, the conditions precedent to borrowing under Section 3.02(c)(ii) of the Loan Agreement are not satisfied and the Lender is not required to advance, nor is the Borrower entitled to receive, any Loans under the Loan Agreement. The Borrower hereby irrevocably agrees that it shall not seek any further Loans under the Loan Agreement and will not be entitled to receive any further Loans hereafter unless the Dilution Trigger Event has been waived by the Facility Insurer, the Agent and the Lenders.
(d) Execution Lender. The Borrower further acknowledges that, due to the existence of this Agreement constitutes a direction by the Participant Lenders that Dilution Trigger Event, the Administrative Agent act Facility Insurer is entitled to receive Default Premium and the Lender is entitled to receive Default Yield and such amounts shall be paid from the Collection Account in accordance with its terms. Section 2.05(c) of the Loan Agreement.
1.4 Each Participant of the Borrower, the Agent, the Lender agrees and the Facility Insurer hereby irrevocably directs the Trustee, Collateral Agent and Collection Account Bank, and the Trustee, Collateral Agent and Collection Account Bank hereby agree, that, notwithstanding anything to the contrary in the Credit AgreementsLoan Agreement, during the Forbearance Period, (i) the Trustee shall not release any funds in the Collection Account to the Originator or the Borrower under Section 2.05(f) of the Loan Agreement until such time as the Loans have been prepaid in full and all other amounts due and owing to the Facility Insurer, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now have been paid; (ii) on the Remittance Date to occur on or may about March 12, 2004 all funds in the future have under any or all Collection Account shall be applied in the order of priority set forth in Section 2.05(c) of the Loan Documents and/or applicable law Agreement including, pursuant to clause (vi) thereof, to the repayment of the principal amount of Loans, and (iii) on each Business Day after such Remittance Date an amount equal to (x) all funds in connection with all Defaults the Collection Account minus (y) the amounts otherwise required to be retained on deposit therein under Section 2.05(f) of the Loan Agreement in respect of accrued Yield, Premium, Non-Use Fees, Servicing Fees, Backup Standby Servicer Fees and Events Trustee Fees, shall be paid to the Lender in repayment of Default (including without limitation the Specified Defaults)principal of Loans.
Appears in 1 contract
Sources: Forbearance Agreement (Maxtor Corp)
Forbearance. (a) The Participant Lenders agree that until Subject to any rights or remedies granted to the expiration Consenting Creditors pursuant to this Agreement, the Definitive Documents, including the DIP Documents, or any order of the Forbearance Bankruptcy Court, during the Support Period, the Participant Lenders will temporarily Consenting Creditors agree to forebear from exercising (and agree to direct any agent or trustee to forbear from exercising) any rights or remedies they may have under the Prepetition Funded Debt Documents (subject whether under U.S. or non-U.S. Law) with respect to any breaches, defaults, events of default or potential defaults by the Debtors (including any such breaches, defaults, events of default, or potential defaults resulting from any maturities occurring during the Support Period). Each Consenting First Lien Lender specifically agrees that this Agreement constitutes a direction to the terms hereof) from the exercise of their default-related remedies under the Credit AgreementsFirst Lien Agent to refrain, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsSupport Period, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude from exercising any remedy available or power conferred to the Administrative First Lien Agent against the Debtors or any subsidiaries or any of their assets except as necessary to effectuate the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawRestructuring.
(b) Upon a Termination Event, Except to the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of extent provided or expressly contemplated under this Agreement or any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of DefaultDefinitive Documents, including, without limitation, the Specified Defaults.
DIP Documents, each Consenting Creditor further agrees that if any applicable administrative agent, collateral agent, or indenture trustee takes any action inconsistent with any such Consenting Creditor’s obligations under this Section 4.07, such Consenting Creditor shall use commercially reasonable efforts to direct and cause such administrative agent, collateral agent, or indenture trustee (cas applicable) to cease and refrain from taking such actions. For the avoidance of doubt, nothing herein limits the right foregoing forbearance shall not be construed to impair the ability of the Administrative Agent or the Lenders, including during the Forbearance Period, Consenting Creditors to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingremedial action, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary subject to the terms of this Agreement.
the Prepetition Funded Debt Documents or otherwise, as applicable, at any time from and after the Termination Date (e) The Borrower and unless the Subsidiary Guarantors acknowledge and agree that the agreement Termination Date occurs solely as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all occurrence of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsEffective Date).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until A. Provided that, and only for so long as, Borrower timely makes the expiration of payments required by the Forbearance Periodpreceding paragraph, the Participant Lenders will temporarily forbear (subject to the terms hereof) and conditions set forth herein, Lender will forbear from the exercise of their exercising any default-related rights and remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability for a limited period of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors time in accordance with this Agreement. The forgoing shall comply during the Forbearance Period with all provisionsnot constitute a novation, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance waiver of any Default rights or Event remedies should Borrower fail to timely make all such payments, all of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawwhich are expressly reserved.
(b) Upon a Termination EventB. Should Borrower fail to make any payment for any reason whatsoever, the agreement of the Participant Lenders Lender hereunder to forbear from exercising their any default-related rights and remedies shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaives. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders Lender may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or loan documents and applicable law, including, without limitation, their respective its rights and remedies with respect to Borrower's failure to pay the Note in connection with full and any other default or event of default that is continuing at such time. Without limiting the generality of the foregoing, upon any failure to pay, without the requirement of any demand, presentment, protest, or notice of any kind, Lender may foreclose on any or all Collateral, including without limitation all of Borrower's assets, commence any legal or other action to collect any or all of the Defaults Obligations from any person, and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any other enforcement action to preserve or otherwise exercise rights any or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under provided for by any or all of the Loan Documents and/or loan documents or applicable law in connection with all Defaults and Events of Default (law, including without limitation Article 9 of the Specified Defaults)Uniform Commercial Code, all of which rights and remedies are fully reserved by Lender.
C. Any agreement to extend the Forbearance Period, if any, must be set forth in writing and manually executed by a duly authorized signatory of Lender. Borrower acknowledges that L▇▇▇▇▇ has not made any assurances concerning any possibility of an extension of the forbearance period, and has stated it will not agree to extend the period for any reason.
Appears in 1 contract
Sources: Forbearance Agreement (Ilustrato Pictures International Inc.)
Forbearance. (a) The Participant Lenders agree Each of the Class A-1 Certificateholders agrees that until the expiration of the Forbearance PeriodPeriod (as defined below), it will not, as part of a majority in interest of Fractional Undivided Interests in the Participant Lenders will temporarily forbear (subject Class A-1 Trust or in any other capacity direct the Class A-1 Trustee, when the Class A-1 Trustee is the Controlling Party or otherwise, to cause the terms hereof) from Subordination Agent and the Mortgagees to exercise any of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Atlas solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided Defaults (the "CLASS A-1 FORBEARANCE"). Each of the Class A-1 Certificateholders further agrees (i) to join in executing and causing to be delivered to the Class A-1 Trustee, with a copy to the Subordination Agent and Mortgagees, at or about the time that a Specified Default occurs, a letter (a "FORBEARANCE INSTRUCTION LETTER") instructing the Borrower Class A-1 Trustee to instruct the Subordination Agent and Mortgagees (an "INSTRUCTION LETTER TO SUBORDINATION AGENT AND MORTGAGEES") to forbear from exercising any default-related remedies until the Subsidiary Guarantors shall comply Subordination Agent or Mortgagees receive instructions to the contrary ("CONTRARY INSTRUCTIONS") from the Class A-1 Trustee, which Forbearance Instruction Letter will instruct the Class A-1 Trustee not to give any such Contrary Instructions during the Forbearance Period with all provisionsunless it is directed to do so by the holders of a majority in interest of Fractional Undivided Interests in the Class A-1 Trust, limitations(ii) to refrain from directing the Class A-1 Trustee to give any such Contrary Instructions during the Forbearance Period, restrictions or prohibitions that would otherwise be effective or applicable under any and (iii) to provide to Atlas a copy of the Loan Documents during Forbearance Instruction Letter (and, if such Class A-1 Certificateholder receives a copy of an Instruction Letter to Subordination Agent and Mortgagees, a copy of such letter) and a return receipt or other evidence indicating the continuance of any Default or Event of Default; provided further that the agreement delivery of the Participant Lenders temporarily Forbearance Instruction Letter to forbear the Class A-1 Trustee, provided that, (w) nothing in the Forbearance Instruction Letter, the Instruction Letter to Subordination Agent and Mortgagees, or in this Agreement is intended to or shall prevent any Mortgagee, Subordination Agent, Class A-1 Trustee, Class A-1 Certificateholder or other person from (A) giving notice of the occurrence of a Default under a Lease or Indenture (it being understood that, except for providing that notice of a Default may be given, this clause (A) does not limit or affect in any way the agreements of the Class A-1 Certificateholders that are set forth above in this Section 2(a), or (B) exercising its right to cause one or more LTV Appraisals to be obtained pursuant to the Intercreditor Agreement, (x) the Class A-1 Certificateholders shall not apply be required to nor preclude obtain any remedy available acknowledgement or agreement from the Class A-1 Trustee with respect to the Administrative Forbearance Instruction Letter and the Class A-1 Trustee shall not be required to obtain any acknowledgement or agreement from the Mortgagees or Subordination Agent with respect to the Instruction Letter to Subordination Agent and Mortgagees, (y) the Class A-1 Certificateholders shall not be required to provide any indemnity or other inducement for the Lenders Class A-1 Trustee, Subordination Agent, or Mortgagees to comply with such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees, and (z) the Class A-1 Certificateholders give no representation or warranty as to the effect of such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees or as to whether the Class A-1 Trustee will in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, fact send such Instruction Letter to any relief in respect of adequate protection or relief from any stay imposed under such lawSubordination Agent and Mortgagees.
(b) Upon Each of the dates and events referred to in clauses (i) through (viii) below in this Section 2(b) is referred to herein as a "TERMINATION EVENT". As used herein, "FORBEARANCE PERIOD" means the period beginning on the date hereof and ending on the earliest to occur of (x) a Termination EventEvent listed in clause (i), (v), or (vii) below in this Section 2(b) (it being understood that no notice is required in order for the Forbearance Period to terminate immediately and automatically upon the occurrence of any Termination Event listed in clause (i), (v), or (vii) below in this Section 2(b)), or (y) the date three (3) business days after any Class A-1 Certificateholder (or such Class A-1 Certificateholder's counsel) gives notice to Atlas that a Termination Event listed in clause (ii), (iii), (iv), (vi) or (viii) of this Section 2(b) has occurred and that, as a result thereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Period shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveend. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Termination Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).are as follows:
Appears in 1 contract
Sources: Forbearance Agreement (Atlas Air Worldwide Holdings Inc)
Forbearance. Subject to the terms and conditions contained herein and subject to performance by Borrower of all of the terms of this Agreement and the Loan Agreement and Loan Documents after the date hereof, Lender shall forbear from exercising any remedies that Lender has against Borrower as a result of the occurrence of the Existing Non-Compliance Event, until the earlier of the following dates (the “Forbearance Period”): (i) July 31, 2020 or (ii) the date any of the following (an “Additional Non-Compliance Event”) shall occur: (a) The Participant Lenders agree an Event of Default under the Loan Agreement or any Loan Document occurs (including, without limitation, any Event of Default consisting of the non-compliance with the financial covenant set forth in Recital C for any periods other than the period specified therein, and any Default or Event of Default which has occurred as of this date which is not an Existing Non-Compliance Event) or (b) Borrower fails to pay any amount due under this Agreement or to perform any covenant or other agreement contained in this Agreement or any other document entered into pursuant hereto, or any breach by Borrower of any representation or warranty of this Agreement. This forbearance shall not be deemed a continuing waiver or forbearance with respect to any Event of Default of a nature similar to the Existing Non-Compliance Event that until may have occurred before or may occur after the expiration date of this Agreement. At the end of the Forbearance Period, the Participant Lenders will temporarily forbear (Forbearance Period under this Agreement shall expire automatically, immediately, and without notice or demand, and subject to Section 4 below, Lender shall be entitled to the terms hereof) from the immediate exercise of their default-related all the rights and remedies available to it under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors otherwise at law. Nothing in this Agreement shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance constitute a waiver of any Default or Event of Default; provided further that Default under the agreement Loan Documents or of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent Lender’s rights or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any other indebtedness now or all of hereafter existing between the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Lender and the Subsidiary Guarantors ("Third Party Rights")Borrower. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction This agreement is being executed by the Participant Lenders Lender to accommodate the request of Borrower, and Borrower understands and agrees that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything has no obligation to the contrary grant further forbearances in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementfuture.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that Lender previously agreed to forbear from exercising any rights and remedies under the Loan Agreement and applicable law because of the Forbearance Events of Default for a limited time period, expiring November 15, 2001, on the terms set forth in the Fourteenth Amendment. By subsequent letter agreement, Lender agreed to extend such forbearance through January 31, 2003. In accordance with the terms hereof, Lender agrees that, notwithstanding the occurrence of the Forbearance Events of Default and until the expiration of the "Forbearance Period" (as hereinafter defined), the Participant Lenders Lender will temporarily forbear (from exercising any rights and remedies under the Loan Documents and applicable law and Lender will continue to make loans to Borrower in accordance with and subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any conditions of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawAgreement, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower as modified and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction amended by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The , as though the Forbearance Event of Defaults had not occurred and did not exist, provided however that in addition to and not in derogation of any of Lender's other rights under the Loan Agreement, Lender hereby specifically reserves the right to unilaterally and in Lender's sole and absolute discretion, impose additional reserves and to reduce the Eligible Inventory Sublimit and other sublimits under the Loan Agreement from time to time. As consideration for Lender's entering into this Agreement and to induce Lender to waive the effect of the Forbearance Events of Default on a temporary basis as set forth herein, Borrower acknowledges and agrees that Lender may take the actions described in the preceding sentence without approval from or notice to Borrower and even if the Subsidiary Guarantors acknowledge actions so taken by Lender would otherwise be deemed to be commercially unreasonable, economically burdensome or detrimental to Borrower. Borrower hereby consents to any such action or actions on the part of Lender and agree irrevocably waives any and all rights that the agreement Borrower possesses to object to any such action or actions. Upon termination of the Participant Lenders hereunder Forbearance Period, Lender's agreement to forbear hereunder shall be null and void and Lender shall be free to exercise its rights and remedies under the Loan Agreement and other Loan Documents and applicable law, immediately and without further notice. As used herein, the term "Forbearance Period" means the period beginning on the date hereof and continuing through December 1, 2003 or any earlier date on which Lender terminates its forbearance hereunder as provided in the following sentence. Lender may terminate its forbearance hereunder prior to December 1, 2003 and exercise its rights and remedies under the Loan Agreement, the other Loan Document and at law if it determines that any of the following events has occurred: (i) any Event of Default, other than the Forbearance Events of Default (and other than a default under any financial covenant set forth in the Loan Agreement), under the Loan Agreement or any of the other Loan Documents; (ii) a "Material Adverse Change" (as that term is hereinafter defined); or (iii) the failure of Borrower to perform, comply with and observe each and every covenant, warranty, duty and obligation of Borrower hereunder. As used herein, the term "Material Adverse Change" means any material adverse change from exercising their default-related remedies and after the date hereof in (a) the financial condition, credit, business, prospects, properties or operations of the Borrower,(b) the ability of the Borrower to perform its obligations under the Loan Agreement and the Loan Documents to which it is a party on a timely basis other than with respect to the Specified Defaults shall not constitute a waiver Forbearance Events of such Specified Defaults and that Default, or (c) the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all value of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Collateral.
Appears in 1 contract
Sources: Forbearance Agreement and Amendment to Loan and Security Agreement (Arts Way Manufacturing Co Inc)
Forbearance. During the period commencing on the Effective Date and ending on the earlier to occur of (a) The Participant 5:00 p.m. (Dallas, Texas time) on October 31, 2012; or (b) the date that any Forbearance Default (as defined in Section 9.01 hereof) occurs (the "Forbearance Period"), and subject to the other terms and conditions of this Amendment, Agent and Lenders agree that until they will forbear from exercising their rights and remedies, including, without limitation, (i) initiating judicial proceedings for the collection of the Obligations, (ii) initiating any judicial enforcement action for the foreclosure upon and sale of the Collateral; or (iii) filing or joining in any filing any involuntary petition under the Bankruptcy Code with respect to Borrowers, in respect of the Subject Events of Default; provided, however, that Agent may, but shall not be obligated to, collect the Accounts and proceeds of other Collateral and apply such collections and proceeds thereof to the Obligations and impose the Default Rate as contemplated in the Credit Agreement. Upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders’ forbearance shall automatically terminate and Agent and Lenders may at any time thereafter proceed shall be entitled to exercise any and all of their respective rights and remedies under any or all of this Amendment, the Loan Credit Agreement and/or the Other Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of respect to the Defaults and Subject Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative . Borrowers agree that Agent or the Lenders, including during and Lenders shall have no obligation to extend the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all inclusion of the Loan Documents and/or applicable law in connection with all Defaults and Expected Events of Default (including without limitation to the Specified extent that they occur within the Forbearance Period) within the “Subject Defaults)” shall not imply any intention to do so. This Amendment and the forbearance contemplated by this Section 7.01 shall not be construed as establishing a custom or a course of dealing or conduct among Agent, Lenders and Borrowers.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement and Forbearance Agreement (Englobal Corp)
Forbearance. (a) The Participant Lenders agree that until the expiration Foothill acknowledges receipt of the Forbearance PeriodBorrower's letters to Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ of Foothill dated March 3, 1998 and May 8, 1998 in which the Participant Lenders will temporarily forbear Borrower acknowledges and enumerates certain Events of Default that have occurred and are continuing under the Loan Agreement (subject the "Current Defaults"). Foothill hereby agrees to the terms hereof) forebear from the exercise taking any action or exercising any of their default-related its remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Agreement with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply Current Defaults during the Forbearance Period with all provisionsperiod from April 17, limitations1998, restrictions or prohibitions through and including September 30, 1998; PROVIDED, HOWEVER, that would otherwise be effective or applicable under any of such forbearance shall apply only to the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear Current Defaults, shall not apply to nor preclude any remedy available to other Event of Default continuing as of the Administrative Agent Amendment Date, or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Event of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault that may occur after the Amendment Date. Further, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults forbearance shall not constitute a waiver by Foothill of any of its rights or remedies under the Loan Agreement, but shall only constitute a limited forbearance. Furthermore, nothing contained in this letter shall diminish, prejudice or waive any of Foothill's rights or remedies under the Loan Agreement or applicable law, and Foothill hereby reserves all such rights and remedies. Anything contained in the foregoing to the contrary notwithstanding, Foothill's continued forbearance with respect to the Current Defaults shall be contingent on Borrower's successful achievement of each of the following on or before the dates set forth below, and Borrower's failure to achieve any one or more of the following on or before the dates set forth below shall terminate Foothill's agreement to the forgoing forbearance from and after the date of any such failure:
(a) Borrower's shall have filed its proxy statement with respect to the sale of certain of Borrower's radio stations (the "Proxy") to Catholic Radio Network, LLC ("CRN") and shall have mailed a copy of such Specified Defaults and that proxy to each of the Lenders expressly reserve all rights and remedies that holders of Borrower's Stock on or before July 30, 1998;
(b) Borrower shall have conducted the Administrative Agent and meeting of the Lenders now or may holders of Borrower's Stock contemplated in the future Proxy with respect to obtaining all shareholder approvals required with respect to the sale of certain of Borrower's radio stations to CRN on or before September 15, 1998; and
(c) Borrower shall have under any consummated the sale of each of Borrower's radio stations to CRN pursuant to the transactions contemplated in the Proxy and in accordance with the approvals obtained from the holders of Borrower's Stock on or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)before September 30, 1998.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Broadcasting Corp)
Forbearance. The Company and ▇▇▇▇▇ acknowledge the existence of the Specified Defaults, including the failure of Facility Substantial Completion and Final Completion to be achieved. Subject to the terms and conditions set forth herein, throughout the period commencing on the date of this Agreement and ending on June 29, 2011 (the “Forbearance Period”), the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Lender) hereby agree to forbear from exercising any and all available default rights and remedies under the Agreement, the Notes. the Account and Security Agreement, the deeds of trust creating the Liens described in Article XI of the Account and Security Agreement, the Class B Investors Pledge Agreement and the Special Interest Investors Pledge Agreement and at applicable law as the result of the occurrence and continuance of the Specified Defaults. The Company and ▇▇▇▇▇ acknowledge and agree that the foregoing agreement to forbear exercising such default rights and remedies throughout the Forbearance Period shall not constitute a waiver of the Specified Defaults or a waiver of any other Credit Agreement Event of Default or Credit Agreement Default that is not waived by Section 3 of this Forbearance Agreement, and that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent expressly reserve all such default rights and remedies. The Company and ▇▇▇▇▇ further acknowledge and agree that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent may exercise any and all such default rights and remedies at any time following the earliest to occur of (a) The Participant Lenders agree that until the expiration of the Forbearance Period, (b) the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply occurrence during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any additional Credit Agreement Default or Credit Agreement Event of Default; provided further that the agreement , other than those potential Credit Agreement Defaults or Credit Agreement Events of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Default expressly waived in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Section 3 of adequate protection or relief from any stay imposed under such law.
this Forbearance Agreement (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, any default under this Forbearance Agreement), or (c) any of MLE, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (“MLP”), UTC, the Company, ▇▇▇▇▇ or any of their respective rights and remedies in connection with Affiliates takes any or all of action against the Defaults and Events of DefaultFacility, any other collateral for the Advances (including, without limitation, the Specified Defaults.
(c) For additional collateral described in Article XI of the avoidance Account and Security Agreement), the Company or ▇▇▇▇▇ or any of doubtits Affiliates which the Administrative Lender believes would materially adversely affect the interests of the Lenders, nothing herein limits the right of Administrative Lender, the Administrative Agent or the Lenders, including during the Forbearance Period, to take Collateral Agent (any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingevents described in clause (a), the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand (b) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes c), a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults“Forbearance Termination Event”).
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Fourth Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Fourth Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Fourth Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Fourth Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Fourth Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) December 6, 2007; and (ii) two business days after the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything Noteholder Group to the contrary in Company and Lender of a written notice terminating the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Fourth Forbearance
Appears in 1 contract
Sources: Forbearance Agreement (Wornick CO)
Forbearance. (a) The Participant Lenders Effective as of the Sixth Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Sixth Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Sixth Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Sixth Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Sixth Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) February 8, 2008; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Sixth Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Sixth Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Sixth Amended Forbearance Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which K▇▇▇▇ Z▇▇▇▇ C▇▇▇▇▇ that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Sixth Amended Forbearance Agreement) under the DDJ Sixth Amended Forbearance Agreement or any amendment or modification to the DDJ Sixth Amended Forbearance Agreement; (D) termination of the DDJ Sixth Amended Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Sixth Amended Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the C▇▇▇▇▇ Engagement Letter or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay C▇▇▇▇▇’▇ fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
the C▇▇▇▇▇ Engagement Letter; (eG) The Borrower and the Subsidiary Guarantors acknowledge and agree occurrence of any Event of Default that is not a Specified Existing Default; (H) the agreement failure of the Participant Lenders hereunder Company to forbear from exercising their default-related remedies comply with respect any term, condition, covenant or agreement set forth in this Sixth Amended Forbearance Agreement; (I) the failure of any representation or warranty made by the Company under this Sixth Amended Forbearance Agreement to the Specified Defaults shall not constitute a waiver of such Specified Defaults be true and that the Lenders expressly reserve correct in all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all material respects as of the Loan Documents and/or applicable law in connection with all Defaults and Events date when made; (J) the commencement by or against the Company or any of Default the Subsidiaries of a case under title 11 of the United States Code; or (including without limitation K) the Specified Defaults).commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or
Appears in 1 contract
Sources: Forbearance Agreement (Wornick CO)
Forbearance. The Servicer is hereby authorized to forbear in connection with its enforcement of Tax Liens, provided that the subject Property Owners comply with the individual terms and conditions of forbearance established by the Servicer in its sole discretion, but which shall include (a) The Participant Lenders agree that until the expiration repayment in full of the Forbearance PeriodAdjusted Redemptive Value of the applicable Tax Lien over a period ending no later than February 1, 2025, unless it is determined by the Servicer that an extension of the repayment period is in the best economic interest of the Issuer, but in no event shall the repayment period exceed thirty-six (36) months from the due date of the first forbearance payment, (b) payments on a periodic basis directly to the Indenture Trustee for deposit to the Tower Issuer Lockbox, (c) the requirement that all required payments accruing subsequently to the subject Tax Lien for the subject Property that if not paid could result in the creation of a further “tax lien” (as defined in the Section 11-301 of the City Admin. Code) on such Property (the “Subsequent Taxes and Assessments”) remain current, (d) an acknowledgement of the amount due with respect to the Tax Lien that is the subject of such forbearance, a waiver of any waivable defenses to any foreclosure action and any other similar stipulations deemed necessary or desirable by the Servicer, (e) other than with respect to Properties classified by the City as within Tax Class 1, the Participant Lenders will temporarily forbear (subject Property Owner agrees to permit access to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance Property for purposes of any Default or Event of Default; provided further Environmental Assessment relating thereto, (f) the Property Owner agrees that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawforeclosure action relating to the Property, including without limitationthe holder of the related Tax Lien shall have the right to appoint a receiver, and (g) such forbearance is evidenced by a written agreement executed by each of the Servicer and the Property Owner; provided, however, that the Servicer may not agree to any relief such forbearance (in respect of adequate protection writing or relief from any stay imposed under such law.
(botherwise) Upon a Termination Event, until after the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveClosing Date. The Borrower details of such forbearance shall be maintained in the Servicer’s collection system. The Servicer shall provide the City and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed its representatives with access to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including such information during the Forbearance PeriodServicer’s customary business hours, to take any action to preserve or exercise rights or remedies against parties other than at the Borrower and the Subsidiary Guarantors ("Third Party Rights")City’s request. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction Any reasonable expenses incurred by the Participant Lenders that the Administrative Agent act Servicer in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to negotiating and monitoring the terms and conditions of this Agreementforbearance shall be considered Lien Administration Expenses.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Servicing Agreement
Forbearance. (a) The Participant Lenders agree that until the expiration of During the Forbearance Period, the Participant Lenders will temporarily each Supporting Holder, severally and not jointly, hereby agrees to forbear (subject to the terms hereof) from the exercise exercising any of their default-related remedies Rights and Remedies, including with respect to an Acceleration or directing the Trustee or otherwise taking any action to cause any other Holders to exercise any Rights and Remedies, under the Credit AgreementsIndentures or applicable law solely with respect to any Specified Default. Moreover, Loan Documents in the event that any Holder or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability group of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply Holders takes any action which results in an Acceleration or delivers any notice of Default or an Event of Default during the Forbearance Period solely with all provisionsrespect to a Specified Default, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during Supporting Holders shall (a) deliver a written notice and direction to the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Trustee to forbear shall not apply to nor preclude seek any remedy available to under the Administrative Agent or the Lenders Indenture in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
Acceleration and (b) Upon a Termination Eventtake all other action in their power to cause such Acceleration to be rescinded and cancelled, the agreement in each case, in accordance with Sections 6.02, 6.05 and 6.06 of the Participant Lenders hereunder Indentures and otherwise pursuant to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower terms and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all provisions of the Loan Documents and/or Indentures and in accordance with applicable law. During the Forbearance Period, includingeach Supporting Holder (severally and not jointly) agrees that it (individually or collectively) will not deliver any notice or instruction to the Trustee directing the Trustee to exercise, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, Rights and Remedies under the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand Indentures or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies applicable law solely with respect to the Specified Defaults shall and each Supporting Holder (severally and not constitute a waiver jointly) agrees that it will take all necessary action pursuant to the Indentures and in accordance with applicable law to revoke, rescind or otherwise nullify the exercise of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection Rights and Remedies of any Holder during the Forbearance Period solely with all Defaults and Events of Default (including without limitation respect to the Specified Defaults), provided that, for the avoidance of doubt, the Supporting Holders (individually or collectively) may deliver any such notice or instruction on or after the Termination Date.
Appears in 1 contract
Sources: Forbearance Agreement (Compass Group Diversified Holdings LLC)
Forbearance. (a) The Participant Lenders agree that until For the expiration period beginning as of the Effective Date and ending at the earlier of (i) 5:00 p.m. (Eastern time) on February 12, 2002 (the "Expiration Date"), as such date may be extended pursuant to clause (e) below, and (ii) the date upon which a Forbearance Default (as defined below) shall occur (such period herein referred to as the "Forbearance Period"), the Participant Lenders will temporarily Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties, without waiving, curing or ceasing the continuance of the Specified Defaults, hereby agree to forbear (subject to the terms hereof) from the exercise of their default-related rights and remedies available under the Credit Agreement and the other Loan Documents on account of the Specified Defaults. Except as expressly limited herein, the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties hereby expressly reserve all of their rights and remedies under the Credit AgreementsAgreement and the other Loan Documents and under Applicable Law with respect to the Specified Defaults.
(b) The Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties hereby further agree that the Administrative Agent shall not deliver any notice to the trustee for the Refinancing Securities the effect of which would be to restrict payment of the Bond Interest Payment and to commence the "Blockage Period" provided for in the indenture for the Refinancing Securities (a "Blockage Notice") unless (i) a Material Default shall have occurred or (ii) any default or event of default by any of the Participants (as defined in the Participation Agreement referenced herein) shall have occurred under that certain Participation Agreement dated as of the Effective Date among the Incremental Term Loan Lenders and the Participants (as defined therein) (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Participation Agreement"). In the event that the Bond Interest Payment shall not have been made with the proceeds of a Term Loan Commitment Increase by 5:00 p.m. (Eastern time) on February 12, 2002, the Administrative Agent shall deliver a Blockage Notice to the trustee for the Refinancing Securities based upon the existence of the Specified Defaults and any other Events of Default occurring after the Fifth Amendment Date.
(c) The agreement by the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties to grant the forbearance herein shall be effective only with respect to the Specified Defaults and shall automatically cease to be of any force or effect, and except to the extent set forth in the foregoing clause (b), the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties shall be entitled to exercise all of their rights and remedies under the Credit Agreement and the other Loan Documents and under Applicable Law, in the event that (i) any Default or Event of Default (other than any Specified Default) shall occur or exist under the Credit Agreement or any of the other Loan Documents or otherwise(ii) any default or event of default by any of the Participants (as defined in the Participation Agreement) shall occur under the Participation Agreement (each such event referred to in the foregoing clauses (i) and (ii) being herein referred to as a "Forbearance Default").
(d) The agreement by the Lead Arranger, against the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties to grant the forbearance herein shall not be construed to limit in any manner the effectiveness of any restriction or limitation set forth in the Credit Agreement and the other Loan Documents which is applicable to the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that its Subsidiaries and permits the Borrower and the Subsidiary Guarantors shall comply its Subsidiaries to engage in certain activities only during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance absence of any Default or Event of Default; provided further that , other than to the agreement extent any such activity may be expressly permitted by this Agreement. Such restrictions and limitations shall remain in full force and effect notwithstanding the existence of the Participant Lenders temporarily Forbearance Period.
(e) So long as (i) no Forbearance Default shall have occurred and (ii) the Borrower shall have made the Bond Interest Payment on or before February 12, 2002, the Expiration Date with respect to forbear the Forbearance Period shall not apply automatically extend to nor preclude 5:00 p.m. (Eastern time) on March 15, 2002, without any remedy available to further action necessary on the part of the Borrower, the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent or any of the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawCredit Parties. The parties hereto may further extend the Forbearance Period, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventbut the Lead Arranger, the agreement of Syndication Agent, the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandDocumentation Agent, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Credit Parties shall be under no obligation to exercise any and all of their respective rights and remedies under any or all do so. Any additional extension of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Forbearance Period shall be in connection with any or all the sole discretion of the Defaults and Events of Default, including, without limitationLead Arranger, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingSyndication Agent, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of Documentation Agent, the Administrative Agent and the Credit Parties and, if granted, shall be evidenced by a written instrument executed by the Required Lenders.
(df) Execution of this Agreement constitutes a direction by clause (b) above, (i) the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent forbearance granted herein is not and shall not be required deemed to act if directed against constitute an undertaking by the Borrower or Lead Arranger, the Subsidiary Guarantors if such action is contrary to Syndication Agent, the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that Documentation Agent, the Administrative Agent and the Lenders now Credit Parties, or may in any of them, to forbear or refrain at any time from exercising any and all rights and remedies available to them under the future have under Credit Agreement or any or all of the other Loan Documents and/or applicable law in connection or under Applicable Law upon the occurrence of any Forbearance Default or the failure to comply with all Defaults any terms of this Agreement and Events (ii) it shall not seek to distrain or otherwise hinder, delay, or impair the Administrative Agent's efforts to realize upon the Collateral, or otherwise to enforce its rights and remedies pursuant to the Credit Agreement and the other Loan Documents. The provisions of Default (including without limitation this paragraph shall be specifically enforceable by the Specified Defaults)Administrative Agent.
Appears in 1 contract
Forbearance. 1.1 Subject to the terms and conditions of this Agreement, and provided that no Forbearance Default (aas defined below) The Participant Lenders agree has occurred, Lender agrees that until during the period commencing on the date of this Agreement and ending on and including May 15, 2014 (the "Forbearance Period"), Lender will not file suit (as defined in the Promissory Note) or file suit or take any other action to enforce its rights under the Promissory Note. This limited forbearance does not extend to any other default or Events of Default under any other provision of the Promissory Note or any of the other rights and remedies available to Lender under the Promissory Note. Upon the earlier of (i) the occurrence of a Forbearance Default and (ii) the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the Lender’s agreement of the Participant Lenders temporarily to forbear shall not apply automatically be deemed terminated and Lender shall be entitled to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including immediately and without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, exercise all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified DefaultsPromissory Note.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding 1.2 Notwithstanding anything to the contrary in the Credit Agreementscontained herein, the Administrative Agent shall not be required effectiveness of the agreement made by Lender pursuant to act if directed against the Borrower or the Subsidiary Guarantors if such action Section 3.1, and Lender’s agreement to forbear as described in Section 2 above, is contrary subject to the terms fulfillment, to the exclusive satisfaction of Lender in its sole and absolute discretion, of each of the following conditions before the end of the Forbearance Period:
(i) Borrower shall complete and submit to the Securities and Exchange Commission (“SEC”) any and all required quarterly and annual filings (e.g. 10Qs and 10Ks) in order to become reinstated as a fully-reporting public company on the Over-the-Counter (OTC) stock exchange (the “SEC Filings”);
(ii) Borrower shall submit the required documentation to the Financial Industry Regulatory Authority (“FIRNA”) in order to be reinstated as a listed public company on the Over-the-Counter Bulletin Board (OTCBB) stock exchange; and
i.1 The following events shall constitute "Forbearance Defaults:”
(i) Any default or Event of Default under the Promissory Note, other than the Existing Default, shall have occurred and by continuing;
(ii) Borrower shall fail to comply with any provision of this Agreement.; or
(eiii) The Borrower shall fail to provide to Lender within thirty (30) Business Days’ request therefore, such information as Lender may reasonably request with respect to Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Collateral.
Appears in 1 contract
Sources: Forbearance Agreement (Mount Knowledge Holdings, Inc.)
Forbearance. From the Effective Date through July 31, 2015 (“Forbearance Period”), Lender hereby agrees to further forbear from enforcing the remedies available to it under the Riverside Loan Documents, the Riverside Guaranty, and the Riverside Security Agreement 2, and applicable law on the condition that:
(a) The Participant Lenders agree that until the expiration Borrower does not file, or have filed against it, any petition for bankruptcy under any chapter of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified DefaultsUnited States Bankruptcy Code; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.and
(b) Upon a Termination Event, the agreement No other creditor of Borrower: (i) executes on or garnishes any of the Participant Lenders hereunder property of Borrower; or (ii) commences any action or proceeding to forbear enforce any remedies or collect any amounts due or claimed due from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest Borrower which action or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all proceeding is not dismissed within thirty (30) days after commencement of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.same; and
(c) For Except as to the avoidance specific defaults described in the Recitals of doubtthis Agreement, nothing herein limits Borrower is not in default under the right terms of the Administrative Agent any indebtedness extended by Lender to Borrower or the Lendersobligation owed by Borrower to Lender, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Riverside Loan Documents and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.Riverside Guaranty; and
(d) Execution Borrower performs all of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.obligations hereunder; and
(e) The No representations or warranties of Borrower prove to be false or misleading in any material respect; and
(f) On the first (1st) day of each month commencing March 1, 2015 and continuing on the Subsidiary Guarantors acknowledge first (1st) day of each month thereafter through and agree that including July 1, 2015, Borrower shall make principal and interest payments in the agreement amount of $500.00 to Lender. All payments made under this Subsection (f) shall be applied first to accrued interest, then to the unpaid principal balance of the Participant Lenders hereunder to forbear from exercising their default-related remedies Riverside Note; and
(g) Borrower is in full compliance with respect to the Specified Defaults shall not constitute a waiver terms of such Specified Defaults the Revolving Loan; and
(h) Except for the maturity date and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future payment obligations which have under any or been adjusted as provided for herein, Borrower will observe all of the other terms and conditions of the Riverside Loan Documents and/or applicable law in connection with all Defaults Documents, the Riverside Guaranty, and Events of Default (including without limitation the Specified Defaults)Riverside Security Agreement 2.
Appears in 1 contract
Sources: Forbearance Agreement (Pro Dex Inc)
Forbearance. Bank agrees to forebear until December 31, 2001 (athe Forbearance Period") The Participant Lenders agree from exercising its remedies under the Existing Loan Documents, notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to meet the Adjusted Quick Ratio for the quarter ending September 2001, (the foregoing being referred to as "Existing Defaults") or any future breaches under the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement (as so modified, the "Loan Documents"). By signing below, Borrower acknowledges that they are currently in default and as a result of such default, Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and as provided under applicable law. Nothing in this Agreement in any way shall constitute Bank's waiver of Borrower's Existing Defaults. A breach by Borrower of any of the terms set forth in this Agreement or the occurrence of any default (other than the Existing Defaults) under the Existing Loan Documents shall result in immediate termination of Bank's forbearance, whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any remedies available to Bank under the Existing Loan Documents and this Agreement, and under applicable law. Upon termination of the Forbearance Period described above, without any notice to Borrower, Bank may exercise any remedies available to Bank under the Loan Documents and under applicable law. In addition, Bank's agreement to continue to forbear from enforcing its remedies under the Existing Loan Documents until the expiration end of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies notwithstanding Borrower's Existing Defaults under the Credit AgreementsExisting Loan Documents, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely (a) in no way shall be deemed an agreement by Bank to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period waive Borrower's compliance with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any other terms of the Existing Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawDocuments, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
as modified by this Loan Modification and Forbearance Agreement and (b) Upon a Termination Event, the agreement shall not limit or impair Bank's right to demand strict performance of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement all other terms and covenants as of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivedate. The Borrower and the Subsidiary Guarantors agree further agrees that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights rights or remedies allowed to Bank when an Event of Default occurs, as provided for in the Existing Loan Documents (the "Default Rights") upon termination of the Administrative Agent and the Lenders.
(d) Execution Forbearance Period shall not be affected by reason of this Agreement constitutes and the Borrower shall not assert as a direction by defense thereto the Participant Lenders passage of time, estoppel, laches or any statute of limitations to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms exercise of any Default Rights was precluded by this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Forbearance. (a) Upon the satisfaction of the conditions precedent set forth in Section 3 of this Agreement, each Forbearing Holder hereby agrees that during the Forbearance Period it will not, directly or indirectly, (x) take any Remedial Action with respect to the Notes in connection with the Specified Defaults, (y) take any Remedial Action with respect to the purported breaches set forth in the letter dated May 21, 2010 of ▇▇▇▇▇ ▇. ▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Canadian Facility Matters”), it being understood that neither the Issuer nor the Guarantors admit to the validity of such breaches, or (z) sell, pledge, hypothecate or otherwise transfer any Notes, except to a purchaser or other entity who agrees in writing (delivered to Sidley Austin LLP) to be bound by all of the terms of this Agreement with respect to the relevant Notes being sold, pledged, hypothecated or transferred to such purchaser or entity. The Participant Lenders agree that until foregoing limited forbearance shall not be construed to impair the expiration ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of Default other than the Specified Defaults and the Canadian Facility Matters. Without prejudicing the rights and remedies of the Forbearing Holders in respect of the Canadian Facility Matters (except as expressly limited in this Agreement), in no event, during the Forbearance Period, shall the Participant Lenders will temporarily forbear (subject to Forbearing Holders assert that a Forbearance Termination Event has occurred because the terms hereof) from the exercise Canadian Facility Matters constitute a Default or an Event of their default-related remedies Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawIndenture.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuer and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder Indenture and the Notes without giving effect to forbear from exercising their default-related remedies the forbearance set forth herein.
(c) The Forbearing Holders hereby agree to execute and deliver a letter, promptly after the Effective Date to the Trustee in the form attached hereto as Schedule A (the “Letter”), which letter shall immediately terminate without not be withdrawn or rescinded by the requirement Forbearing Holders until the occurrence of any demandForbearance Termination Event.
(d) Except for the forbearance to the extent expressly set forth above in subsection 2(a), presentmenteach Forbearing Holder reserves each and every right and remedy it may have under the Notes, protest or notice of the Indenture, the Collateral Documents, any kind, all of which the Borrower agreement relating thereto and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at under applicable law with respect to any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of DefaultSpecified Defaults, including, without limitation, the Specified Defaults.
(c) For right to continue to charge and collect interest at the avoidance of doubt, nothing herein limits the right default rate pursuant to Section 1 of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Notes. The Issuer and the Subsidiary Guarantors ("Third Party Rights"). For purposes each of the foregoing, the Borrower and the Subsidiary Guarantors hereby acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights default interest pursuant to Section 1 of the Administrative Agent Notes shall accrue from and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsafter July 1, 2010. Each Participant Lender agrees that, notwithstanding anything Nothing herein shall be deemed to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now any Default or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Event of Default whatsoever, whether now existing or hereafter arising (including including, without limitation limitation, any of the Specified Defaults), or, except to the extent of the forbearance expressly set forth herein, of any right or remedy the Trustee or any Holder may have under the Notes, the Indenture, the Collateral Documents or any agreement relating thereto and under applicable law.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date, the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the applicable Indenture Trustee and any broker or other Person that holds the Notes on behalf of such Noteholders, and by signature hereto so direct the applicable Indenture Trustee pursuant to Sections 502, 507 and 512 of the applicable Indenture and such brokers or other Persons, not to exercise, any rights and remedies against Holdings, the Participant Lenders will temporarily forbear (subject U.S. Issuer, the Canadian Issuer, or the Subsidiaries that are available under the applicable Indenture and/or applicable law solely with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Interest Defaults and the Subsidiary Guarantors solely Financial Reporting Defaults; provided, however, the Noteholders shall be entitled to assert a right to the accrual of default interest to the extent provided under the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply applicable Indenture during the Forbearance Period but may not seek any remedy or take any action with all provisionsrespect thereto during the Forbearance Period; provided, limitationshowever, restrictions that nothing herein shall restrict, impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during Noteholders’ rights under this Second Amended and Restated Agreement, and provided further that no such forbearance shall constitute a waiver with respect to any Defaults (other than the continuance Interest Defaults and Financial Reporting Defaults) or any other Events of Default under the applicable Indenture.
(b) As used herein, the term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the earlier to occur of (i) February 13, 2009; and (ii) two (2) Business Days after the delivery by Paul, Weiss, as counsel to the Noteholder Group, to the applicable Issuer and the applicable Indenture Trustee a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time but only upon or after the occurrence of any Forbearance Default; provided, however, that notwithstanding the foregoing, this Second Amended and Restated Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsections (A) and (F) below, without the need for delivery of the Termination Notice or any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the valid acceleration of all indebtedness arising under (i) the U.S. Indenture, (ii) the Canadian Indenture or (iii) that certain credit agreement dated as of April 6, 2005 (as amended or modified, the “Credit Agreement”), among the Issuers, as borrowers, Holdings, as guarantor, certain lenders and The Bank of Nova Scotia, as Administrative Agent; (B) the failure of the Issuers and Holdings to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction which determination shall be made by the holders of a majority in principal amount of the Notes issued under the Indentures in good faith and their reasonable discretion; (C) the occurrence of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties Default other than the Borrower Interest Defaults and Financial Reporting Defaults; (D) the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingU.S. Issuer, the Borrower Canadian Issuer, Holdings or the Subsidiaries to comply with any material term, condition, covenant or agreement set forth in this Second Amended and Restated Agreement; (E) the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making failure of any necessary demand representation or warranty made by the U.S. Issuer, the Canadian Issuer, Holdings or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights Subsidiaries under this Second Amended and Restated Agreement to be true and correct in all material respects as of the Administrative Agent and date when made; (F) the Lenders.
commencement by or against the U.S. Issuer, the Canadian Issuer, Holdings, or any Subsidiary of a case under title 11 of the United States Code, the Companies’ Creditors Arrangement Act or any other act that seeks relief under any comparable liquidation, reorganization or insolvency regime or proceeding that is not, in the case of proceedings commenced against the U.S. Issuer, the Canadian Issuer, Holdings or the Subsidiaries, dismissed within five (d5) Execution Business Days of this Agreement constitutes a direction by commencement; or (G) the Participant Lenders that U.S. Issuer, the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatCanadian Issuer, notwithstanding anything Holdings, or the Subsidiaries pays any management, sponsor or consulting fees to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower stockholders of Masonite Holding Corp. or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementtheir affiliates.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Forbearance Agreement (Masonite International Inc.)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 6:30 p.m. Eastern Daylight Time on the first business day that until is fifteen (15) calendar days after the expiration Effective Date, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted during the Forbearance Period to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or other applicable law; provided further that nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under such Applicable Agreement), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Notwithstanding the Existing Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Existing Defaults (other than as set forth in the following sentence). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders forbearance set forth in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventSection 4 below, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Existing Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Existing Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults)conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Sources: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. (a) The Participant Lenders agree that until Upon the expiration satisfaction of the Forbearance Periodconditions precedent set forth in Section 3 of this Agreement and in reliance on the representations, warranties and agreements of the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Issuers and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided herein contained, each Forbearing Holder hereby agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period it will not, directly or indirectly, take any Remedial Action with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any respect to the Notes solely as a result of the Loan Documents Excess Cash Flow Prepayment Defaults (and the Acceleration) or the Financial Covenant Defaults. The foregoing limited forbearance shall not be construed to impair the ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the continuance Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of any Default or Event of Default; provided further that other than the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent Excess Cash Flow Prepayment Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawFinancial Covenant Defaults.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately and automatically cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuers and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Indenture and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, Notes (including, without limitation, their respective rights payment of any unpaid accrued interest at the Post-Default Rate) without giving effect to the forbearance set forth herein.
(c) Except for the forbearance, to the extent expressly set forth above in subsection 2(a), each Forbearing Holder reserves each and remedies in connection every right and remedy it may have under the Notes, the Indenture, the Security Documents, any agreement relating thereto and under applicable law with any or all of respect to the Excess Cash Flow Prepayment Defaults and Events of Defaultthe Financial Covenant Defaults, including, without limitation, the Specified Defaults.
right to continue to charge and accrue (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including but not collect during the Forbearance Period, ) interest at the Post-Default Rate. Nothing herein shall be deemed to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Excess Cash Flow Prepayment Defaults and that the Lenders Financial Covenant Defaults), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Security Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration Vendor shall forbear from exercising any remedy with respect to collection of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Standstill Amount and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawinterest thereon, including without limitationlimitation making demands for payment or return of merchandise or joining in a petition for an involuntary bankruptcy of ▇▇▇▇▇▇▇▇'▇ or other proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, custodian or other similar official (each, an "Insolvency Proceeding") and hereby waives any such rights. Vendor hereby acknowledges that the violation of its agreement to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to so forbear from exercising their default-related remedies shall immediately terminate without any remedy with respect to the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Standstill Amount and the Subsidiary Guarantors interest thereon will cause irreparable harm to the Company and agrees that any such violation shall give rise to the following remedies (which constitute the only remedies available to ▇▇▇▇▇▇▇▇'▇ and as to which Vendor hereby waive. The Borrower waives all defenses): (i) immediate injunctive relief as may be necessary to restore the status quo; (ii) loss of Vendor's interest in the Trade Creditor Lien (and such Vendor's claims shall no longer be secured by the Subsidiary Guarantors agree that the Administrative Agent Trade Creditor Lien); and the Lenders may at (iii) any time thereafter proceed to exercise applicable damages for commencing any Insolvency Proceeding ((i), (ii), and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law(iii), including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitationcollectively, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party RightsStandstill Violation Remedies"). For purposes of Notwithstanding the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Vendor shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear prohibited from exercising their default-related its remedies with respect to the Specified Defaults shall any other goods shipped to ▇▇▇▇▇▇▇▇'▇ (and not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may included in the future have under Standstill Amount) for which payment becomes past due; provided that such remedy does not include foreclosing on collateral or joining in an Insolvency Proceeding (as to which remedies Vendor has waived its rights to pursue, as well as any defenses concerning the Standstill Violation Remedies). Vendor's forbearance as described herein shall continue notwithstanding the existence of any Program Default or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Individual Default (including without limitation the Specified Defaultsas such terms are defined herein).
Appears in 1 contract
Sources: Secured Trade Credit Program Letter Agreement (Friedmans Inc)
Forbearance. Borrower acknowledges the Financial Covenant Defaults. Subject to all the terms and conditions set forth herein, Bank shall forbear from filing any legal action or instituting or enforcing any rights and remedies it may have against Borrowers related to the Financial Covenant Defaults (as defined below) from the Forbearance Effective Date (as defined in Section 6 hereof) until the date (the “Forbearance Termination Date”) which is the earliest to occur of (a) The Participant Lenders agree October 18, 2015, (b) the failure after the date hereof of Borrower to comply with any of the terms or undertakings of this Amendment, (c) the occurrence after the date hereof of any Event of Default (other than the Financial Covenant Defaults), (d) the occurrence of any further material adverse change to the business, assets, financial condition, or prospects of Borrower, and (e) the date that until Borrower joins in, assists, cooperates, or participates as an adverse party or adverse witness in any suit or other proceeding against Bank relating to the expiration Obligations in connection with or related to any of the transactions contemplated by any of the Loan Documents. Except as expressly provided herein, this Agreement does not constitute a waiver or release by Bank of any Obligations or of any Financial Covenant Default, any other existing Event of Default or Event of Default which may arise in the future after the date of execution of this Amendment. If Borrower does not comply with the terms of this Amendment, Bank shall have no further obligations under this Amendment and shall be permitted to exercise at such time any and all rights and remedies against Borrower as it deems appropriate in its sole and absolute discretion. Borrower understands that Bank has made no commitment and is under no obligation whatsoever to grant any additional extensions of time at the end of the Forbearance Period, . The time period between the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Forbearance Effective Date and the Subsidiary Guarantors solely Forbearance Termination Date is referred to herein as the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the “Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawPeriod.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) ” For the avoidance of doubt, nothing herein limits Borrower may request Advances pursuant to the right terms of the Administrative Agent or Loan Agreement, but without regard to the LendersFinancial Covenant Defaults, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Sources: Loan and Security Agreement (Ikanos Communications, Inc.)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 1, 2020, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted during the Forbearance Period to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or other applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under such Applicable Agreement), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Forbearance. (a) The Participant In the event that Section 2 hereof does not become effective because the conditions precedent specified in Section 6(b) hereof are not satisfied, then the undersigned Required Lenders agree that from and after the Limited Waiver Effective Date until the expiration last day of the Forbearance Waiver Period, the Participant Lenders will temporarily they shall forbear (subject to the terms hereof) from the exercise of exercising their default-related rights and remedies under the Credit AgreementsAgreement, the other Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely applicable law with respect to the extent the availability of such remedies arises exclusively from the Specified Payment Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventtermination of the Waiver Period, the agreement agreements of the Participant undersigned Required Lenders hereunder to forbear from exercising their default-related rights and remedies in respect of the Payment Defaults set forth herein shall immediately terminate automatically terminate, without the requirement of any demandnotice to any Loan Party, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower undersigned Required Lenders shall be free in their sole and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter absolute discretion to proceed to exercise any and all of their respective rights and remedies under enforce any or all of their rights and remedies set forth in the Credit Agreement, the other Loan Documents and/or and applicable law, including, without limitation, their respective rights and remedies in connection with any or all the right to demand the immediate repayment of the Defaults Advances and Events the right to immediate repayment of Default, including, without limitation, the Specified Defaultsall other Obligations in full.
(c) For the avoidance of doubt, nothing herein limits the right In furtherance of the Administrative Agent or foregoing and notwithstanding the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes occurrence of the foregoingLimited Waiver Effective Date, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights each of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender Loan Parties agrees that, notwithstanding anything subject to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant undersigned Required Lenders hereunder to forbear from exercising certain of their default-related rights and remedies with respect as and to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders extent expressly reserve set forth in this Limited Waiver, all rights and remedies that the Administrative Agent and of the Lenders now or may in the future have under any or all of the Loan Documents and/or or applicable law in connection with all Defaults respect to such Loan Party shall continue to be available to the Lenders from and Events of Default (including without limitation after the Specified Defaults)Limited Waiver Effective Date.
Appears in 1 contract
Sources: Limited Waiver (TLC Vision Corp)