Acknowledgements and Undertakings. (a) The Borrower and the Subsidiary Guarantors agree and acknowledge that certain of the Specified Defaults (as defined in the First Forbearance Agreement) occurred during the First Forbearance Period and that the Specified Defaults (as defined in section 1(c)) might occur or continue during the Forbearance Period (as defined in section 1(a)) and that certain of the Specified Defaults (as defined in the First Forbearance Agreement) constituted, and the Specified Defaults (as defined in section 1(c)) should they occur will constitute material Events of Default. (b) In addition to the information required to be furnished under the Loan Documents to the Administrative Agent and the Lenders (and without prejudice to sections 5.01 or any other provision of the Credit Agreements), the Borrower shall, as promptly as practicable, provide to the Administrative Agent and the Steering Committee Members any information reasonably requested by the Administrative Agent or the Lenders. Without limiting the generality of the foregoing, the Borrower shall promptly provide to the Administrative Agent and the Steering Committee Members, in a form acceptable to the Administrative Agent, (i) on Tuesday of each week, a detailed forecast of receipts and disbursements for the Borrower and the Subsidiary Guarantors providing, on a weekly basis, the Borrower's good faith estimate of projected receipts and disbursements for the 13 weeks commencing with the immediately following week, together with a reconciliation of such forecast against the forecast delivered the previous week and a reasonably detailed explanation of any variance between the current forecast and such previously delivered forecast; (ii) not later than the tenth day following the end of each calendar month, an operational report, including management's good faith estimate of receipts and disbursements for such month, the cash balances of the Borrower and Subsidiary Guarantors as of the end of such calendar month, and an analysis of performance against projected performance as set forth in the phased business plan dated March 9, 2005 previously delivered to the Participant Lenders; (iii) on Monday of each week, a written or oral (in the sole discretion of the Borrower) update, and at any time on request of the Administrative Agent, a written update, addressed to the financial advisor of the Administrative Agent regarding the status of the Borrower's efforts to sell all or any portion of its business, including, without limitation, a list of all contacts made with potential purchasers (including the identities of those contacted and the dates of such contacts), copies (if in writing) or descriptions (if not in writing) of any proposals, offers or indications of interest received by the Borrower or its attorneys or financial advisors, and any responses thereto by the Borrower or any such attorney or financial advisor; (iv) all material information (except for information previously provided by the Borrower to the Administrative Agent and the Steering Committee Members) that the Borrower proposes or intends to disclose to the public as far in advance of such disclosure as practicable; and (v) direct access to the officers and employees, and books and records of the Borrower and its Subsidiaries (including the Restructuring Adviser retained by the Borrower) to obtain such information as the Participant Lenders deem reasonably necessary to evaluate, negotiate and implement any restructuring plan and to verify and analyze to the reasonable satisfaction of the Participant Lenders the matters referred to in subparagraphs (i), (ii), (iii) and (iv) above. (c) The Restructuring Adviser shall continue to be actively employed by the Borrower at all times during the Forbearance Period and shall have direct access to all information, personnel and other resources necessary to the performance of his or her duties. (d) The Borrower shall make all scheduled interest payments under the 2002 Credit Agreement at the non-default contract rate. (e) The Administrative Agent has been paid and shall continue to retain the Advance as an advance payment in respect of the Borrower's obligations to pay expenses and other amounts under sections 9.03 of the Credit Agreements, and shall continue to be entitled to pay such amounts (including sums payable in respect of expenses or other liabilities incurred or paid by the Administrative Agent prior to the date hereof) as they come due, including, without limitation, (i) the reasonable fees and expenses of counsel and financial advisors provided for in such sections and (ii) travel and other incidental expenses of Lenders actively participating with the Administrative Agent in restructuring discussions with the Borrower. The Borrower shall from time to time, within three Business Days following the receipt of a demand from the Administrative Agent, make further advances to the Administrative Agent in order to restore the balance of the Advance held by the Administrative Agent to $1.5
Appears in 1 contract
Acknowledgements and Undertakings. (a) The Borrower and the Subsidiary Guarantors agree and acknowledge that certain of the Specified Defaults (as defined in the First Forbearance Agreement and the Second Forbearance Agreement) occurred during the First Forbearance Period and the Second Forbearance Period, respectively, and that the Specified Defaults (as defined in section 1(c)) might occur or continue during the Forbearance Period (as defined in section 1(a)) and that certain of the Specified Defaults (as defined in the First Prior Forbearance AgreementAgreements) constituted, and the Specified Defaults (as defined in section 1(c)) should they occur will constitute material Events of Default.
(b) In addition to the information required to be furnished under the Loan Documents to the Administrative Agent and the Lenders (and without prejudice to sections 5.01 or any other provision of the Credit Agreements), the Borrower shall, as promptly as practicable, provide to the Administrative Agent and the Steering Committee Members any information reasonably requested by the Administrative Agent or the Lenders. Without limiting the generality of the foregoing, the Borrower shall promptly provide to the Administrative Agent and the Steering Committee Members, in a form acceptable to the Administrative Agent,
(i) on Tuesday of each week, a detailed forecast of receipts and disbursements for the Borrower and the Subsidiary Guarantors providing, on a weekly basis, the Borrower's good faith estimate of projected receipts and disbursements for the 13 weeks commencing with the immediately following week, together with a reconciliation of such forecast against the forecast delivered the previous week and a reasonably detailed explanation of any variance between the current forecast and such previously delivered forecast;
(ii) not later than the tenth day following the end of each calendar month, an operational report, including management's good faith estimate of receipts and disbursements for such month, the cash balances of the Borrower and Subsidiary Guarantors as of the end of such calendar month, and an analysis of performance against projected performance as set forth in the phased business plan dated March 9, 2005 previously delivered to the Participant Lenders;
(iii) on Monday Tuesday of each week, a written or oral (in the sole discretion of the Borrower) update, and at any time on request of the Administrative Agent, a written update, addressed to the financial advisor of the Administrative Agent regarding the status of the Borrower's restructuring activities, including the Borrower's efforts to sell any material assets or to sell all or any portion of its business, including, without limitation, a list of all contacts made with potential purchasers (including the identities of those contacted and the dates of such contacts), copies (if in writing) or descriptions (if not in writing) of any proposals, offers or indications of interest received by the Borrower or its attorneys or financial advisors, and any responses thereto by the Borrower or any such attorney or financial advisor;
(iv) all material information (except for information previously provided by the Borrower to the Administrative Agent and the Steering Committee Members) that the Borrower proposes or intends to disclose to the public as far in advance of such disclosure as practicable; and
(v) direct access to the officers and employees, and books and records of the Borrower and its Subsidiaries (including the Restructuring Adviser retained by the Borrower) to obtain such information as the Participant Lenders deem reasonably necessary to evaluate, negotiate and implement any restructuring plan and to verify and analyze to the reasonable satisfaction of the Participant Lenders the matters referred to in subparagraphs (i), (ii), (iii) and (iv) above.
(c) The Restructuring Adviser shall continue to be actively employed by the Borrower at all times during the Forbearance Period and shall have direct access to all information, personnel and other resources necessary to the performance of his or her duties.
(d) The Borrower shall make all scheduled interest payments under the 2002 Credit Agreement at the non-default contract rate.
(e) The Administrative Agent has been paid and shall continue to retain the Advance as an advance payment in respect of the Borrower's obligations to pay expenses and other amounts under sections 9.03 of the Credit Agreements, and shall continue to be entitled to pay such amounts (including sums payable in respect of expenses or other liabilities incurred or paid by the Administrative Agent prior to the date hereof) as they come due, including, without limitation, (i) the reasonable fees and expenses of counsel and financial advisors (including FTI Consulting, Inc.) provided for in such sections and (ii) travel and other incidental expenses of Lenders actively participating with the Administrative Agent in restructuring discussions with the Borrower. The Borrower shall from time to time, within three Business Days following the receipt of a demand from the Administrative Agent, make further advances to the Administrative Agent in order to restore the balance of the Advance held by the Administrative Agent to $1.5
Appears in 1 contract
Acknowledgements and Undertakings. (a) The Borrower and the Subsidiary Guarantors agree and acknowledge that certain of the Specified Defaults (as defined in the First Forbearance Agreement) occurred during the First Forbearance Period and that the Specified Defaults (as defined in section 1(c)) might will occur or continue during the Forbearance Period (as defined in section 1(a)) and that certain of the Specified Defaults (as defined in the First Forbearance Agreement) constituted, and the Specified Defaults (as defined in section 1(c)) should they occur will constitute material Events of Default.
(b) In addition to the information required to be furnished under the Loan Documents to the Administrative Agent and the Lenders (and without prejudice to sections 5.01 or any other provision of the Credit Agreements), the Borrower shall, as promptly as practicable, provide to the Administrative Agent and the Steering Committee Members any information reasonably requested by the Administrative Agent or the Lenders. Without limiting the generality of the foregoing, the Borrower shall promptly provide to the Administrative Agent and the Steering Committee MembersAgent, in a form acceptable to the Administrative Agent,
(i) on Tuesday of each week, a detailed forecast of receipts and disbursements for the Borrower and the Subsidiary Guarantors providing, on a weekly basis, the Borrower's good faith estimate of projected receipts and disbursements for the 13 weeks commencing with the immediately following week, together with a reconciliation of such forecast against the forecast delivered the previous week and a reasonably detailed explanation of any variance between the current forecast and such previously delivered forecast;
(ii) not later than the tenth day following the end of each calendar month, an operational report, including management's good faith estimate of receipts and disbursements for such month, the cash balances of the Borrower and Subsidiary Guarantors as of the end of such calendar month, and an analysis of performance against projected performance as set forth in the phased business plan dated March 9, 2005 previously delivered to the Participant Lenders;
(iii) on request of the Administrative Agent, and in any event on Monday of each week, a written or oral (in the sole discretion of the Borrower) update, and at any time on request of the Administrative Agent, a written update, update addressed to the financial advisor of the Administrative Agent regarding the status of the Borrower's efforts to sell all or any portion of its business, including, without limitation, a list of all contacts made with potential purchasers (including the identities of those contacted and the dates of such contacts), copies (if in writing) or descriptions (if not in writing) of any proposals, offers or indications of interest received by the Borrower or its attorneys or financial advisors, and any responses thereto by the Borrower or any such attorney or financial advisor;
(iv) all material information (except for information previously provided by the Borrower to the Administrative Agent and the Steering Committee Members) that the Borrower proposes or intends to disclose to the public as far in advance of such disclosure as practicable; and
(viv) direct access to the officers and employees, and books and records of the Borrower and its Subsidiaries (including the Restructuring Adviser Officer retained by the Borrower) to obtain such information as the Participant Lenders deem reasonably necessary to evaluate, negotiate and implement any restructuring plan and to verify and analyze to the reasonable satisfaction of the Participant Lenders the matters referred to in subparagraphs (i), (ii), (iii) and (iviii) above.
(c) As promptly as possible, and, in any event, not later than March 31, 2005, the Borrower shall retain (and identify to the Administrative Agent) the Restructuring Officer. The scope of the Restructuring Adviser Officer's engagement shall be reasonably acceptable to the Participant Lenders. From and after such retention, the Restructuring Officer shall continue to be actively employed by the Borrower at all times during the Forbearance Period and shall have direct access to all information, personnel and other resources necessary to the performance of his or her duties.
(d) The Borrower shall make all scheduled interest payments under the 2002 Credit Agreement at the non-default contract rate.
(e) The On or prior to the Forbearance Effective Date (as defined in section 12 below), the Borrower shall pay to the Administrative Agent has been paid and shall continue to retain the Advance as an advance payment in respect of $1.5 million (the "Advance") on account of the Borrower's obligations to pay expenses and other amounts under sections 9.03 of the Credit Agreements, and . The Administrative Agent shall continue to be entitled to pay such amounts (including sums payable in respect of expenses or other liabilities incurred or paid by the Administrative Agent prior to the date hereof) as they come due, including, without limitation, (i) the reasonable fees and expenses of counsel and financial advisors provided for in such sections and (ii) travel and other incidental expenses of Lenders actively participating with the Administrative Agent in restructuring discussions with the Borrower. The Borrower shall from time to time, within three Business Days following the receipt of a demand from the Administrative Agent, time make further advances to the Administrative Agent Agent, upon demand (and in order any event within three business days), to restore the balance of the Advance held by the Administrative Agent to $1.5
Appears in 1 contract
Acknowledgements and Undertakings. (a) The Borrower and the Subsidiary Guarantors agree and acknowledge that certain of the Specified Defaults (as defined in the First Forbearance Agreement, the Second Forbearance Agreement, the Third Forbearance Agreement and the Fourth Forbearance Agreement) occurred during the First Forbearance Period, the Second Forbearance Period, the Third Forbearance Period and the Fourth Forbearance Period, respectively, and that the Specified Defaults (as defined in section 1(c)) hereof) might occur or continue during the Forbearance Period (as defined in section 1(a)) hereof) and that certain of the Specified Defaults (as defined in the First Prior Forbearance AgreementAgreements) constituted, and the Specified Defaults (as defined in section 1(c)) hereof) should they occur will constitute material Events of Default.
(b) In addition to the information required to be furnished under the Loan Documents to the Administrative Agent and the Lenders (and without prejudice to sections 5.01 or any other provision of the Credit Agreements), the Borrower shall, as promptly as practicable, provide to the Administrative Agent and the Steering Committee Members any information reasonably requested by the Administrative Agent or the Lenders. Without limiting the generality of the foregoing, the Borrower shall promptly provide to the Administrative Agent and the Steering Committee Members, in a form acceptable to the Administrative Agent,
(i) on Tuesday of each week, a detailed forecast of receipts and disbursements for the Borrower and the Subsidiary Guarantors providing, on a weekly basis, the Borrower's good faith estimate of projected receipts and disbursements for the 13 weeks commencing with the immediately following week, together with a reconciliation of such forecast against the forecast delivered the previous week and a reasonably detailed explanation of any variance between the current forecast and such previously delivered forecast;
(ii) not later than the tenth day following the end of each calendar month, an operational report, including management's good faith estimate of receipts and disbursements for such month, the cash balances of the Borrower and Subsidiary Guarantors as of the end of such calendar month, and an analysis of performance against projected performance as set forth in the phased business plan dated March 9, 2005 previously delivered to the Participant Lenders;
(iii) on Monday Tuesday of each week, a written or oral (in the sole discretion of the Borrower) update, and at any time on request of the Administrative Agent, a written update, addressed to the financial advisor of the Administrative Agent regarding the status of the Borrower's restructuring activities, including the Borrower's efforts to sell any material assets or to sell all or any portion of its business, including, without limitation, a list of all contacts made with potential purchasers (including the identities of those contacted and the dates of such contacts), copies (if in writing) or descriptions (if not in writing) of any proposals, offers or indications of interest received by the Borrower or its attorneys or financial advisors, and any responses thereto by the Borrower or any such attorney or financial advisor;
(iv) all material information (except for information previously provided by the Borrower to the Administrative Agent and the Steering Committee Members) that the Borrower proposes or intends to disclose to the public as far in advance of such disclosure as practicable; and
(v) direct access to the officers and employees, and books and records of the Borrower and its Subsidiaries (including the Chief Restructuring Adviser retained by Officer and the BorrowerRestructuring Adviser) to obtain such information as the Participant Lenders deem reasonably necessary to evaluate, negotiate and implement any restructuring plan and to verify and analyze to the reasonable satisfaction of the Participant Lenders the matters referred to in subparagraphs (i), (ii), (iii) and (iv) above.
(c) The Chief Restructuring Adviser Officer (and the Restructuring Advisor) shall continue to be actively employed by the Borrower at all times during the Forbearance Period and shall have direct access to all information, personnel and other resources necessary to the performance of his or her duties.
(d) The Borrower shall make all scheduled interest payments under the 2002 Credit Agreement at the non-default contract rate.
(e) The Administrative Agent has been paid and shall continue to retain the Advance as an advance payment in respect of the Borrower's obligations to pay expenses and other amounts under sections 9.03 of the Credit Agreements, and shall continue to be entitled to pay such amounts (including sums payable in respect of expenses or other liabilities incurred or paid by the Administrative Agent prior to the date hereof) as they come due, including, without limitation, (i) the reasonable fees and expenses of counsel and financial advisors (including FTI Consulting, Inc.) provided for in such sections and (ii) travel and other incidental expenses of Lenders actively participating with the Administrative Agent in restructuring discussions with the Borrower. The Borrower shall from time to time, within three Business Days following the receipt of a demand from the Administrative Agent, make further advances to the Administrative Agent in order to restore the balance of the Advance held by the Administrative Agent to $1.5
Appears in 1 contract
Acknowledgements and Undertakings. (a) The Borrower and the Subsidiary Guarantors agree and acknowledge that certain of the Specified Defaults (as defined in the First Forbearance Agreement, the Second Forbearance Agreement and the Third Forbearance Agreement) occurred during the First Forbearance Period, the Second Forbearance Period and the Third Forbearance Period, respectively, and that the Specified Defaults (as defined in section 1(c)) hereof) might occur or continue during the Forbearance Period (as defined in section 1(a)) hereof) and that certain of the Specified Defaults (as defined in the First Prior Forbearance AgreementAgreements) constituted, and the Specified Defaults (as defined in section 1(c)) hereof) should they occur will constitute material Events of Default.
(b) In addition to the information required to be furnished under the Loan Documents to the Administrative Agent and the Lenders (and without prejudice to sections 5.01 or any other provision of the Credit Agreements), the Borrower shall, as promptly as practicable, provide to the Administrative Agent and the Steering Committee Members any information reasonably requested by the Administrative Agent or the Lenders. Without limiting the generality of the foregoing, the Borrower shall promptly provide to the Administrative Agent and the Steering Committee Members, in a form acceptable to the Administrative Agent,
(i) on Tuesday of each week, a detailed forecast of receipts and disbursements for the Borrower and the Subsidiary Guarantors providing, on a weekly basis, the Borrower's good faith estimate of projected receipts and disbursements for the 13 weeks commencing with the immediately following week, together with a reconciliation of such forecast against the forecast delivered the previous week and a reasonably detailed explanation of any variance between the current forecast and such previously delivered forecast;
(ii) not later than the tenth day following the end of each calendar month, an operational report, including management's good faith estimate of receipts and disbursements for such month, the cash balances of the Borrower and Subsidiary Guarantors as of the end of such calendar month, and an analysis of performance against projected performance as set forth in the phased business plan dated March 9, 2005 previously delivered to the Participant Lenders;
(iii) on Monday Tuesday of each week, a written or oral (in the sole discretion of the Borrower) update, and at any time on request of the Administrative Agent, a written update, addressed to the financial advisor of the Administrative Agent regarding the status of the Borrower's restructuring activities, including the Borrower's efforts to sell any material assets or to sell all or any portion of its business, including, without limitation, a list of all contacts made with potential purchasers (including the identities of those contacted and the dates of such contacts), copies (if in writing) or descriptions (if not in writing) of any proposals, offers or indications of interest received by the Borrower or its attorneys or financial advisors, and any responses thereto by the Borrower or any such attorney or financial advisor;
(iv) all material information (except for information previously provided by the Borrower to the Administrative Agent and the Steering Committee Members) that the Borrower proposes or intends to disclose to the public as far in advance of such disclosure as practicable; and
(v) direct access to the officers and employees, and books and records of the Borrower and its Subsidiaries (including the Chief Restructuring Adviser retained by Officer and the BorrowerRestructuring Adviser) to obtain such information as the Participant Lenders deem reasonably necessary to evaluate, negotiate and implement any restructuring plan and to verify and analyze to the reasonable satisfaction of the Participant Lenders the matters referred to in subparagraphs (i), (ii), (iii) and (iv) above.
(c) The Chief Restructuring Adviser Officer (and the Restructuring Advisor) shall continue to be actively employed by the Borrower at all times during the Forbearance Period and shall have direct access to all information, personnel and other resources necessary to the performance of his or her duties.
(d) The Borrower shall make all scheduled interest payments under the 2002 Credit Agreement at the non-default contract rate.
(e) The Administrative Agent has been paid and shall continue to retain the Advance as an advance payment in respect of the Borrower's obligations to pay expenses and other amounts under sections 9.03 of the Credit Agreements, and shall continue to be entitled to pay such amounts (including sums payable in respect of expenses or other liabilities incurred or paid by the Administrative Agent prior to the date hereof) as they come due, including, without limitation, (i) the reasonable fees and expenses of counsel and financial advisors (including FTI Consulting, Inc.) provided for in such sections and (ii) travel and other incidental expenses of Lenders actively participating with the Administrative Agent in restructuring discussions with the Borrower. The Borrower shall from time to time, within three Business Days following the receipt of a demand from the Administrative Agent, make further advances to the Administrative Agent in order to restore the balance of the Advance held by the Administrative Agent to $1.5
Appears in 1 contract
