Common use of Assurances of Future Non-Impairment Clause in Contracts

Assurances of Future Non-Impairment. Borrower acknowledges and agrees (i) that Lender has expressed its intent and expectation that the concessions, modifications, and accommodations set forth in this Agreement and the Loan Documents constitute the final and conclusive statement of their lending relationship with Borrower Parties, (ii) that Borrower Parties will fully, faithfully and completely pay all obligations under the Loan Documents and comply with all other terms and conditions in this Agreement and the Loan Documents, and (iii) that Lender shall not be subject to any additional business or legal risks with respect to payment of obligations under the Loan Documents. To confirm and realize this expectation and intent, Borrower provides the following representations, acknowledgments, warranties, and agreements: (i) Borrower acknowledges and agrees that, by entering into this Agreement and the other Loan Documents, Lender is willing to afford Borrower a reasonable opportunity to satisfy all of its obligations under the Loan Documents in accordance with the terms and conditions in the Loan Documents, provided, however, that Lender is not willing to accept the additional risk of a future restructuring, renegotiation, or modification of any terms and conditions in the Loan Documents. Borrower further acknowledges and agrees that the representations, acknowledgments, agreements, and warranties made by Borrower (and other Borrower Parties) constitute a material inducement to Lender to enter into this Agreement and the related Loan Documents, and that Lender is relying on such representations and warranties, has changed and will continue to change its position in reliance thereon, and that Lender would not have entered into this Agreement and the related Loan Documents without such representations, acknowledgments, agreements, and warranties. (ii) Borrower represents and warrants that the performance of the terms and conditions under the Loan Documents is feasible, realistic, and achievable. (iii) Borrower acknowledges and agrees that Lender has no obligation to, and does not intend to agree to, accept any subsequent restructuring proposal or make any subsequent loans or other financial accommodations to Borrower or any other Borrower Party. Lender has not, directly or indirectly, encouraged Borrower to anticipate or expect any favorable consideration of any future business plans or requests for additional modifications, amendments or supplements of or to the Loan Documents. Borrower acknowledges and agrees that Lender’s present objectives and goals may include insistence upon full, timely and strict compliance with all terms and conditions of the Loan Documents, and a refusal to consider or accept any subsequent proposals for restructuring or modifications of the Loan Documents. (iv) Borrower represents and warrants that it has no present intention currently or in the future to file a voluntary petition for bankruptcy under the Bankruptcy Code. (v) Neither Borrower nor any of the other Borrower Parties shall under any circumstances resist, hinder, or delay Lender’s enforcement of any rights or remedies it may have under the Loan Documents, including (i) seeking in any state or federal court or any foreign tribunal an injunction or order which may stay or limit Lender’s enforcement of such rights and remedies, (ii) filing a voluntary petition for bankruptcy under the Bankruptcy Code, or any other Creditors’ Rights Laws, and (iii) inducing, supporting, or encouraging any third party to file an involuntary petition against Borrower or any other Borrower Party under the Bankruptcy Code.

Assurances of Future Non-Impairment. Borrower acknowledges and agrees (i) that Lender has expressed its intent and expectation that the concessions, modifications, and accommodations set forth in this Agreement and the Loan Documents constitute the final and conclusive statement of their lending relationship with Borrower Parties, (ii) that Borrower Parties will fully, faithfully and completely pay all obligations under the Loan Documents and comply with all other terms and conditions in this Agreement and the Loan Documents, and (iii) that Lender shall not be subject to any additional business or legal risks with respect to payment of obligations under the Loan Documents. To confirm and realize this expectation and intent, Borrower provides the following representations, acknowledgments, warranties, and agreements: (i) Borrower acknowledges and agrees that, by entering into this Agreement and the other Loan Documents, Lender is willing to afford Borrower a reasonable opportunity to satisfy all of its obligations under the Loan Documents in accordance with the terms and conditions in the Loan Documents, provided, however, that Lender is not willing to accept the additional risk of a future restructuring, renegotiation, or modification of any terms and conditions in the Loan Documents. Borrower further acknowledges and agrees that the representations, acknowledgments, agreements, and warranties made by Borrower (and other Borrower Parties) constitute a material inducement to Lender to enter into this Agreement and the related Loan Documents, and that Lender is relying on such representations and warranties, has changed and will continue to change its position in reliance thereon, and that Lender would not have entered into this Agreement and the related Loan Documents without such representations, acknowledgments, agreements, and warranties. (ii) Borrower represents and warrants that the performance of the terms and conditions under the Loan Documents is feasible, realistic, and achievable. (iii) Borrower acknowledges and agrees that Lender has no obligation to, and does do not intend to agree to, accept any subsequent restructuring proposal or make any subsequent loans or other financial accommodations to Borrower or any other Borrower Party. Lender has not, directly or indirectly, encouraged Borrower to anticipate or expect any favorable consideration of any future business plans or requests for additional modifications, amendments or supplements of or to the Loan Documents. Borrower acknowledges and agrees that Lender’s present objectives and goals may include insistence upon full, timely and strict compliance with all terms and conditions of the Loan Documents, and a refusal to consider or accept any subsequent proposals for restructuring or modifications of the Loan Documents. (iv) Borrower represents and warrants that it has no present intention currently or in the future to file a voluntary petition for bankruptcy under the Bankruptcy Code. (v) Neither Borrower nor any of the other Borrower Parties shall under any circumstances resist, hinder, or delay Lender’s enforcement of any rights or remedies it may have under the Loan Documents, including (i) seeking in any state State or federal Federal court or any foreign tribunal an injunction or order which may stay or limit Lender’s enforcement of such rights and remedies, (ii) filing a voluntary petition for bankruptcy under the Bankruptcy Code, or any other Creditors’ Rights Laws, and (iii) inducing, supporting, or encouraging any third party to file an involuntary petition against Borrower or any other Borrower Party under the Bankruptcy Code.

Assurances of Future Non-Impairment. Borrower acknowledges The Continuing Lenders have expressed their intent and agrees expectation (i) that Lender has expressed its intent and expectation that the concessions, modifications, and accommodations set forth in this Agreement the Amended and the Restated Loan Documents constitute the final and conclusive statement of their lending relationship with Borrower the Loan Parties, (ii) that Borrower the Loan Parties will fully, faithfully and completely pay all obligations under the Loan Documents and comply with all other terms and conditions in this Agreement the Amended and the Restated Loan Documents, and (iii) that Lender the Continuing Lenders shall not be subject to any additional business or legal risks with respect to payment of obligations the Obligations under the Amended and Restated Loan Documents. To confirm and realize this expectation and intent, Borrower provides the Loan Parties provide the following representations, acknowledgments, warranties, and agreements:. (i) Borrower acknowledges 2.1 Borrowers and agrees Parent Guarantor acknowledge that commencing as of September, 1996 they have from time to time been in default under the Existing Loan Documents, and that certain of such defaults have, from time to time, been waived under the Limited Waivers identified in Recital A to this Agreement. The most recent Limited Waiver expired on March 13, 1998, and since that date Borrowers and Parent Guarantor have been in continuing default under the Existing Loan Documents up to the execution of this Agreement and the Amended and Restated Loan Documents. Notwithstanding the existence of such defaults, the Lenders have, subject to the terms and conditions of the various Limited Waivers, forebeared from enforcing their various rights and remedies under the Existing Loan Documents in order to afford the Loan Parties the time needed to effectuate the StorMedia Restructuring. 2.2 The Loan Parties acknowledge and accept that, by entering into this Agreement the Amended and the other Restated Loan Documents, Lender is Continuing Lenders are willing to afford Borrower the Loan Parties a reasonable opportunity to operate in a successful manner and satisfy all of its obligations under the Loan Documents Obligations in accordance with the terms and conditions in the Amended and Restated Loan Documents, provided, however, that Lender is the Continuing Lenders are not willing to accept the additional risk of a future restructuring, renegotiation, or modification of any terms and conditions in the Amended and Restated Loan Documents. Borrower The Loan Parties further acknowledges acknowledge and agrees agree that the representations, acknowledgments, agreements, and warranties in this Agreement made by Borrower (and other Borrower Parties) the Loan Parties constitute a material inducement to Lender the Continuing Lenders to enter into this Agreement the Amended and the related Restated Loan Documents, and that Lender is the Continuing Lenders are relying on such representations and warranties, has have changed and will continue to change its their position in reliance thereon, and that Lender the Continuing Lenders would not have entered into this Agreement the Amended and the related Restated Loan Documents without such representations, acknowledgments, agreements, and warranties. (ii) Borrower represents 2.3 Lenders contend that the cumulative effect of the StorMedia Restructuring and, in particular, the restructuring of the Lenders' claims under the Existing Loan Documents will provide the Loan Parties with a comprehensive financial restructuring which could have been realized in a plan of reorganization under chapter 11 of the Bankruptcy Code. 2.4 The Loan Parties represent and warrants warrant that the Amended and Restated Loan Documents and the StorMedia Restructuring will successfully effectuate a financial restructuring of the Term Loan, if the Loan Parties successfully restructure overdue trade payables, they will be able to continue with their business operations without the need for additional financial restructuring, and the performance of the all other terms and conditions under the Amended and Restated Loan Documents is feasible, realistic, and achievable. (iii) Borrower acknowledges 2.5 The Loan Parties acknowledge and agrees agree that Lender has the Continuing Lenders have no obligation to, and does do not intend to agree to, accept any subsequent restructuring proposal or make any subsequent loans or other financial accommodations to Borrower or any other Borrower Partythe Loan Parties. Lender has The Continuing Lenders have not, directly or indirectly, encouraged Borrower the Loan Parties to anticipate or expect any favorable consideration of any future business plans or requests for additional modifications, amendments or supplements of or to the Amended and Restated Loan Documents; provided, however, that the Continuing Lenders have acknowledged that the Loan Parties may request consents contemplated by the Amended and Restated Loan Documents or waivers of nonmonetary defaults under the Amended and Restated Loan Documents, and that the Continuing Lenders will respond to such requests. Borrower acknowledges The Loan Parties acknowledge and agrees agree that Lender’s the Continuing Lenders' present objectives and goals may include include, without limitation, insistence upon full, timely and strict compliance with all terms and conditions of the Amended and Restated Loan Documents, and a refusal to consider or accept any subsequent proposals for restructuring or modifications of the Amended and Restated Loan Documents. The Loan Parties acknowledge that in order to perform all the terms and conditions of the Amended and Restated Loan Documents they may ultimately have to liquidate assets or implement business plans to raise capital even though such conduct may ultimately diminish the long term going concern potential of the Loan Parties' business enterprise. The Loan Parties willingly accept such risk and obligation, and agree to perform such disposition of assets or modified business plans as and when necessary to fully comply with the terms and conditions of the Amended and Restated Loan Documents. 2.6 At no time shall the prior or subsequent course of conduct by the Loan Parties or by the Lenders, directly or indirectly, limit, impair or adversely affect any of the rights and/or remedies of the Continuing Lenders under the Amended and Restated Loan Documents. 2.7 The Loan Parties shall not under any circumstances fail to or delay in the performance of any of their respective Obligations under the Amended and Restated Loan Documents because of any alleged offsetting claim, right of recoupment, defense or cause of action against the Continuing Lenders (ivcollectively, a "Set Off") Borrower represents which has not been determined and warrants established by a final judgment of a court of a competent jurisdiction, and hereby waive the enforcement of any such Set Off until the entry of such final judgment. The Loan Parties further agree that upon the identification by any Loan Party of any potential Set Off, it has shall deliver to the Continuing Lenders no later than seven (7) days following the date when the Loan Party knew of the potential Set Off, a written notice of such Set Off with a detailed description of the nature, extent and basis for Set Off. Failure to provide such a written notice in a timely manner shall constitute a full and complete waiver of any Set Off. The Continuing Lenders in their future course of conduct with the Loan Parties will expressly rely upon the Loan Parties' timely performance of this obligation to deliver a notice, and the Loan Parties, upon the failure of any Loan Party to provide a timely notice, shall be estopped from asserting any Set Off. 2.8 The Loan Parties represent and warrant that they have no present intention to currently or in the future to file a voluntary petition for bankruptcy under any chapter of the Bankruptcy Code. (v) Neither Borrower nor Code or any of the other Borrower Parties shall proceeding to liquidate, reorganize or rehabilitate a Loan Party under any circumstances resist, hinder, or delay Lender’s enforcement of any rights or remedies it may have under the Loan Documents, including (i) seeking in any state or other federal court law or under any law of a foreign tribunal jurisdiction (collectively an injunction or order which may stay or limit Lender’s enforcement of such rights and remedies, (ii) filing a voluntary petition for bankruptcy under the Bankruptcy Code, or any other Creditors’ Rights Laws, and (iii) inducing, supporting, or encouraging any third party to file an involuntary petition against Borrower or any other Borrower Party under the Bankruptcy Code"Insolvency Proceeding").