Common use of Agreement to Forbear Clause in Contracts

Agreement to Forbear. (a) Subject to the next sentence, HSBC agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement Agreement, at law, in equity or otherwise. All rights and remedies of HSBC under the Settlement Agreement, the Loan Documents, at law, in equity or otherwise, are hereby specifically reserved and may be exercised at any time except to the extent otherwise expressly provided herein. (c) Borrower hereby ratifies and reaffirms its obligations to HSBC under the Settlement Agreement and each of the Financing Documents, and represents and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Services each executed by Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement Agreement, the Guaranties and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Service executed by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereof.

Agreement to Forbear. During the period commencing on the date hereof and ending on the earlier to occur of (ai) Subject February 28, 2019 and (ii) the occurrence of any Additional Default (as defined below) (the “Forbearance Period”), and subject to the next sentencespecific terms and conditions set forth, HSBC Lender agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement Agreement, at law, in equity or otherwiseLoan Documents due to the Subject Event of Default. All rights and remedies Notwithstanding any provision of HSBC under the Settlement this Agreement, the Loan DocumentsForbearance Period shall terminate, at law, in equity and nothing contained herein shall limit any rights or otherwise, are hereby specifically reserved and may be exercised at any time except to the extent otherwise expressly provided herein. (c) Borrower hereby ratifies and reaffirms its obligations to HSBC remedies of Lender under the Settlement Credit Agreement and each or any other Loan Document, upon a Default or Event of Default which is not a Subject Event of Default (each, an “Additional Default”). For purposes of this Agreement, any failure by Borrowers during the Forbearance Period to comply with the Fixed Charge Coverage Ratio covenant as required pursuant to Section 7.1 of the Financing DocumentsCredit Agreement shall not constitute an Additional Default and the requirement of compliance with the Fixed Charge Coverage Ratio covenant under the Credit Agreement is suspended during the Forbearance Period. A default or failure to comply with this Agreement shall constitute an Additional Default. Upon the expiration or termination of the Forbearance Period, Lender’s forbearance shall automatically terminate and represents Lender shall be entitled to exercise any and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement all of HSBC's its rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Services each executed by Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement this Agreement, the Guaranties Credit Agreement and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan DocumentsDocuments without further notice. Borrowers hereby agree that Lender shall have no obligation to extend the Forbearance Period; provided, at lawhowever, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges that Borrowers and agrees that the Confession of Judgment and the Designation of Agent for Service executed Lender may extend such Forbearance Period by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereofexpress written agreement.

Agreement to Forbear. During the period commencing on the date hereof and ending on the earlier to occur of (ai) Subject August 31, 2018 and (ii) the occurrence of any Additional Default (as defined below) (the “Forbearance Period”), and subject to the next sentencespecific conditions precedent set forth in Section 9 hereof and to the other terms and conditions of this Agreement, HSBC Lender agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement Agreement, at law, in equity or otherwiseLoan Documents due to the Subject Events of Default. All rights and remedies Notwithstanding any provision of HSBC under the Settlement this Agreement, the Loan DocumentsForbearance Period shall terminate, at law, in equity and nothing contained herein shall limit any rights or otherwise, are hereby specifically reserved and may be exercised at any time except to the extent otherwise expressly provided herein. (c) Borrower hereby ratifies and reaffirms its obligations to HSBC remedies of Lender under the Settlement Credit Agreement and or any other Loan Document, upon a Default or Event of Default which is not a Subject Event of Default (each an “Additional Default”). For purposes of this Agreement, a default or termination of the Financing Documentsforbearance period under the SWK Forbearance Agreement (as defined in Section 9(b) hereof) shall constitute an Additional Default. Upon the expiration or termination of the Forbearance Period, Lender’s forbearance shall automatically terminate and represents Lender shall be entitled to exercise any and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement all of HSBC's its rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Services each executed by Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement this Agreement, the Guaranties Credit Agreement and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan DocumentsDocuments without further notice. Borrowers hereby agree that Lender shall have no obligation to extend the Forbearance Period; provided, at lawhowever, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges that Borrowers and agrees that the Confession of Judgment and the Designation of Agent for Service executed Lender may extend such Forbearance Period by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereofwritten agreement.

Agreement to Forbear. During the period commencing on the date hereof and ending on the earlier to occur of (ai) Subject April 15, 2019 and (ii) the occurrence of any Additional Default (as defined below) (the “Forbearance Period”), and subject to the next sentencespecific terms and conditions set forth, HSBC Lender agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement Agreement, at law, in equity or otherwiseLoan Documents due to the Subject Events of Default. All rights and remedies Notwithstanding any provision of HSBC under the Settlement this Agreement, the Loan DocumentsForbearance Period shall terminate, at law, in equity and nothing contained herein shall limit any rights or otherwise, are hereby specifically reserved and may be exercised at any time except to the extent otherwise expressly provided herein. (c) Borrower hereby ratifies and reaffirms its obligations to HSBC remedies of Lender under the Settlement Credit Agreement and each or any other Loan Document, upon a Default or Event of Default which is not a Subject Event of Default (each, an “Additional Default”). For purposes of this Agreement, any failure by Borrowers during the Forbearance Period to comply with the Fixed Charge Coverage Ratio covenant as required pursuant to Section 7.1 of the Financing DocumentsCredit Agreement shall not constitute an Additional Default and the requirement of compliance with the Fixed Charge Coverage Ratio covenant under the Credit Agreement is suspended during the Forbearance Period. A default or failure to comply with this Agreement shall constitute an Additional Default. Upon the expiration or termination of the Forbearance Period, Lender’s forbearance shall automatically terminate and represents Lender shall be entitled to exercise any and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement all of HSBC's its rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Services each executed by Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement this Agreement, the Guaranties Credit Agreement and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan DocumentsDocuments without further notice. Borrowers hereby agree that Lender shall have no obligation to extend the Forbearance Period; provided, at lawhowever, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges that Borrowers and agrees that the Confession of Judgment and the Designation of Agent for Service executed Lender may extend such Forbearance Period by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereofexpress written agreement.

Agreement to Forbear. During the period commencing on the date hereof and ending on the earlier to occur of (ai) Subject September 30, 2016 and (ii) the occurrence of any Additional Default (as defined below) (the “Forbearance Period”), and subject to the next sentenceother terms and conditions of this Agreement, HSBC Lender agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement Loan Documents due to the Subject Events of Default. Notwithstanding any provision of this Agreement, at law, in equity nothing contained herein shall limit any rights or otherwise. All rights and remedies of HSBC Lender under the Settlement Agreement, Credit Agreement or any other Loan Document based on any Default or Event of Default which is not a Subject Event of Default (each an “Additional Default”). Upon the Loan Documents, at law, in equity expiration or otherwise, are hereby specifically reserved and may be exercised at any time except to the extent otherwise expressly provided herein. (c) Borrower hereby ratifies and reaffirms its obligations to HSBC under the Settlement Agreement and each termination of the Financing DocumentsForbearance Period, Lender’s forbearance shall automatically terminate and represents Lender shall be entitled to exercise any and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement all of HSBC's its rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Services each executed by Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement this Agreement, the Guaranties Credit Agreement and other Financing Documentsthe Loan Documents without further notice; provided however, that in the event that, (i) Borrowers’ Net Accounts Payable (as defined below) is less than $4,900,000 as measured on September 30, 2016 and represents (ii) no Additional Default has occurred and warrants is continuing, Lenders shall waive the Subject Events of Default. Borrowers hereby agree that Lender shall have no obligation to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to extend the Indebtedness or against the enforcement Forbearance Period. For purposes of HSBC's rights and remedies under Settlement this Agreement, any of the Loan Documents“Net Accounts Payable” shall mean, at law, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Service executed by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of any date of determination, an amount equal to (x) the date hereofaggregate amount of all accounts payable due and owing by Borrower and its Affiliates minus (y) Borrower’s Consolidated Unencumbered Liquid Assets minus (z) so long as no Default or Event of Default has occurred and is continuing, the amount of any Availability.

Agreement to Forbear. (a) Subject to the next sentenceconditions set forth in Section 3 below, HSBC agrees that it will not exercise its remedies under during the Settlement AgreementForbearance Period, including, without limitation, the filing of the Confessions of Judgment, prior and subject to the Forbearance Termination Date. HSBC shall have no obligation terms hereof, Collateral Agent and Initial Purchasers hereby agree to forbear from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of their rights and remedies under the Loan Senior Financing Documents or under the Settlement Agreement, (B) a default in Debtors respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, Prior Forbearance Agreement ‘existing during the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBCForbearance Period. (b) Nothing contained herein in this Section 2 shall be deemed construed to constitute an be a waiver of or acquiescence in any Existing Senior Default, and all such Existing Senior Defaults shall continue in existence, subject only to the written agreement by HSBC that HSBC willof Collateral Agent and Initial Purchasers, or is under any obligation toas Set forth herein, to forbear on or after during the Forbearance Termination Date Period from exercising its any of their rights and remedies under the Settlement Senior Financing Documents or the Prior Forbearance Agreement, at law, in equity or otherwise. All Collateral Agent and Initial Purchasers expressly reserve all of their rights and remedies of HSBC under the Settlement Senior Financing Documents and under applicable law with respect to such Existing Senior Defaults, except as expressly limited in this Agreement, . Nothing in this Section 2 shall act as a waiver of the Loan Documents, at law, in equity or otherwise, are hereby specifically reserved and may be exercised at accrual of any time except to default interest due under section 2(b) of the extent otherwise expressly provided hereinSenior Financing Agreement during the Forbearance Period. (c) Borrower hereby ratifies Upon expiration of the Forbearance Period, Collateral Agent and reaffirms its obligations Initial Purchasers shall have all the rights and remedies available to HSBC them under the Settlement Agreement and each of the Senior Financing Documents, applicable law and represents and warrants to HSBC that Borrower has no right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, Borrower acknowledges and agrees . (d) Collateral Agent may assume without inquiry that the Confession Forbearance Period expires on February 2C’, 2008, unless it receives from the Initial Purchasers a certificate specifying another date and setting forth the provisions of Judgment this Agreement pursuant to which alternative Forbearance Period termination date was established. (e) The parties acknowledge and agree that the Designation of Agent for Services each executed by Borrower in connection with the Settlement Prior Forbearance Agreement remain shall be deemed to have expired and terminated, shall no longer be in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereof. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement Agreement, the Guaranties and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Service executed by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereofmatters governed therein shall be governed pursuant to this Agreement.

Agreement to Forbear. (a) Subject 2.1 Provided that no Forbearance Default occurs, Agent and Lenders hereby agree to forbear and refrain, through the next sentence, HSBC agrees that it will not exercise its remedies under the Settlement Agreement, including, without limitation, the filing of the Confessions of Judgment, prior to the Forbearance Termination Date. HSBC shall have no obligation to forbear , from exercising such remedies if (i) there occurs or shall have occurred (A) additional defaults or Events of Default under any of the Loan Documents or under the Settlement Agreement, (B) a default in Debtors their respective obligations to pay any amounts to HSBC due hereunder, including, without limitation, the First Installment, the Second Installment or the Release Payment (as such terms are hereinafter defined), when due and payable, (C) any other default under this Agreement, or (D) an adverse change affecting HSBC's collateral position or the financial condition or operations of any Debtor (including, without limitation, the filing by any Debtor of a petition in bankruptcy or the institution by or against any Debtor of any other legal proceeding seeking relief from such Debtor's respective debts), or (ii) any Debtor shall commence an action or proceeding of any kind against HSBC. (b) Nothing contained herein shall be deemed to constitute an agreement by HSBC that HSBC will, or is under any obligation to, forbear on or after the Forbearance Termination Date from exercising its rights and remedies under the Settlement AgreementCredit Agreement or any other Loan Document that may exist because of the Covenant Defaults or a default respecting the Sub Debt Payment. 2.2 Nothing in this Agreement shall be construed as a waiver of the Covenant Defaults, at lawwhich defaults shall continue in existence subject only to the agreement of Agent and Lenders, in equity or otherwise. All upon the occurrence of such Covenant Defaults as set forth herein, not to enforce their respective rights and remedies for a limited period of HSBC under time as set forth herein. Notwithstanding the Settlement Agreementpreceding sentence (and without in any manner limiting the generality or the specific thereof), the Loan Documents, at law, in equity occurrence of any Covenant Defaults or otherwise, are hereby specifically reserved and may be exercised at any time except to other defaults identified herein shall only become Defaults or Events of Defaults for purposes of the extent otherwise Credit Agreement on the Termination Date. Except as expressly provided herein. , the execution and delivery of this Agreement shall not: (a) constitute an amendment, extension, modification, or waiver of any aspect of the Credit Agreement or the other Loan Documents; (b) extend the terms of the Credit Agreement or the due date of any of the Obligations; (c) Borrower hereby ratifies give rise to any obligation on the part of Agent or Lenders to extend, modify or waive any term or condition of the Credit Agreement or any of the other Loan Documents; or (d) give rise to any defenses or counterclaims to the right of Agent and reaffirms its obligations Lenders to HSBC compel payment of the Obligations or to otherwise enforce their respective rights and remedies under the Settlement Credit Agreement and the other Loan Documents. Except as expressly limited herein, Agent and Lenders hereby expressly reserve all of their respective rights and remedies under the Loan Documents and under applicable law with respect to such Covenant Defaults. Borrower and each Guarantor expressly acknowledge that from and after the Termination Date, Agent and Lenders shall be entitled to enforce the Loan Documents and require strict compliance with all of the Financing terms and provisions of the Credit Agreement and the other Loan Documents. 2.3 Borrower acknowledges and agrees that, and represents and warrants due to HSBC that the Covenant Defaults, as of the Fifth Amendment Termination Date, (a) no LIBOR Rate Loans shall be available to Borrower, (b) all Loans made to Borrower has no right subsequent to set-off, nor any defense, protest, objection, claim or counterclaim such date shall bear interest with respect to the Indebtedness or against Alternate Base Rate, (c) any LIBOR Rate Loan outstanding as of such date shall continue as a LIBOR Rate Loan until the enforcement of HSBC's rights and remedies under Settlement Agreement, any termination of the Loan Documentsthen-existing Interest Period with respect to such LIBOR Rate Loan, at lawwhich time such LIBOR Rate Loan shall automatically convert to an Alternate Base Rate Loan, (d) Borrower may not continue any Loan (or any portion thereof) as or convert any Loan (or any portion thereof) into a Loan bearing interest with reference to LIBOR, and (e) except as set forth in equity or otherwise. Without limitation of clause (c), all Loans and other Obligations shall thereafter bear interest at the foregoingAlternate Base Rate provided for in Sections 2.1(d)(i), 2.2A(c)(i), and 2.2B(c)(i). 2.4 Borrower further acknowledges and agrees that any amounts advanced to Borrower by the Confession Lenders after the Fifth Amendment Termination Date in excess of Judgment $31,900,000 shall be repaid by Borrower pursuant to any debtor-in-possession credit facility subsequently entered into among Borrower, Agent and the Designation of Agent for Services each executed by Lenders party thereto prior to any other amounts being advanced to Borrower in connection with the Settlement Agreement remain in full force and effect. Borrower confirms, restates and reiterates each of the acknowledgments, representations and warranties made by Borrower in the Settlement Agreement as of the date hereofunder such credit facility. (d) Each Guarantor hereby ratifies and reaffirms its obligations under the Settlement Agreement, the Guaranties and other Financing Documents, and represents and warrants to HSBC that each Guarantor has not right to set-off, nor any defense, protest, objection, claim or counterclaim with respect to the Indebtedness or against the enforcement of HSBC's rights and remedies under Settlement Agreement, any of the Loan Documents, at law, in equity or otherwise. Without limitation of the foregoing, each Guarantor acknowledges and agrees that the Confession of Judgment and the Designation of Agent for Service executed by such Guarantor confirms, restates and reiterates each of the acknowledgments, representations and warranties made by such Guarantor in the Settlement Agreement as of the date hereof.