Common use of Forbearance Conditions Clause in Contracts

Forbearance Conditions. Subject to the terms and conditions set forth herein, the Administrative Agent and Lenders agree to forbear from exercising their rights and remedies under the Loan Documents, including without limitation, commencing legal action to enforce the agreements and obligations of the Obligors under the Loan Documents, until the date (the “Forbearance Termination Date”) which is the earliest to occur of (a) the occurrence or continuance after the date hereof of any Event of Default other than the Events of Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred to herein as “Specified Defaults”); (b) the failure of any Obligor to comply with any term or condition set forth in this Agreement; (c) the occurrence after the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor or any Affiliate of any Obligor shall commence any litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent or any Lender in connection with any of the transactions contemplated by any of the Loan Documents (which term shall include without limitation this Agreement); (e) the failure of actual cash flow, as projected in the projections to be delivered by the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 30, 2009, to be at least eighty percent (80%) of the amount of cash flow projected for such month by such projections; and (f) November 30, 2009, provided that the date set forth in this clause (f) shall be automatically extended to December 15, 2009 without any further action of the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On and after the Forbearance Termination Date, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any or all of its and the Lenders’ rights under or in respect of the Loan Documents and applicable law.

Forbearance Conditions. Subject to The following conditions shall ---------------------- constitute the terms and conditions set forth herein, the Administrative Agent and Lenders agree to forbear from exercising their rights and remedies under the Loan Documents, including without limitation, commencing legal action to enforce the agreements and obligations of the Obligors under the Loan Documents, until the date (the “"Forbearance Termination Date”) which is the earliest to occur of Conditions": (a) The Borrower shall timely perform all of its obligations under this Agreement; (b) Other than the occurrence Forbearance Defaults, no Default, Event of Default, or continuance "Event of Default" under and as defined in the Back Bay Agreement shall occur or be continuing; (c) No payments shall have been made by the Borrower after the date hereof of any Event of Default other than the Events of Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred this Agreement to herein as “Specified Defaults”); (b) the failure of any Obligor to comply with any term or condition set forth in this Agreement; (c) the occurrence after the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor or any Affiliate of any Obligor shall commence any litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent Borrower or in respect of principal of or interest on any Lender Subordinated Debt; (d) Contemporaneously with the execution and delivery of this Agreement the Borrower shall have received $1.5 million in connection with any cash, being the net proceeds of a subordinated loan made by Xxxxx Assets International Limited (registration no. 84998B), a company organized under the International Business Companies Act of the transactions contemplated Commonwealth of the Bahamas, pursuant to documentation substantially in the form attached hereto as Exhibit A and otherwise in form and substance satisfactory to the Agent (the "MAI Loan") and the proceeds of the MAI Loan shall be applied upon receipt to repayment of Revolving Credit Loans outstanding under the Loan Agreement (but without any reduction in the Revolving Credit Facility); (e) No payment of interest on or repayment or prepayment of principal of the MAI Loan shall be made by the Borrower; (f) The Borrower shall on or before March 31, 1999, pay any and all real property taxes in respect of owned Real Estate that are past due or on such date deposit in escrow with BankBoston or another escrow agent satisfactory to both Back Bay and the Borrower an amount equal to the amount of real property taxes due and unpaid on the Borrower's owned Real Estate (being approximately $400,000 on the date of this Agreement), pursuant to an escrow agreement that will provide for the release of the escrowed funds (i) to pay such real property taxes directly upon instruction to Back Bay from the Borrower, (ii) to the Borrower upon presentation to Back Bay of evidence reasonably satisfactory to it of payment in full of such real property taxes, or (iii) to pay such real property taxes at any time after Back Bay has commenced enforcement actions under the Back Bay Agreement or any of the Loan Documents (which term shall include without limitation this Agreement)as defined therein) or any governmental authority has commenced any adverse action against the Borrower or the subject Real Estate arising out of the non-payment of such real property taxes, and otherwise in form and substance satisfactory to Back Bay and the escrow agent; and (eg) the failure of actual cash flow, as projected The representations and warranties contained in the projections Loan Agreement and the Back Bay Agreement shall be correct in all material respects; and (h) The Borrower shall, and shall demonstrate to be delivered the Agent's satisfaction from time to time upon request by the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 30, 2009, to be at least eighty percent (80%) of the amount of cash flow projected for such month by such projections; and (f) November 30, 2009, provided Agent that the date set forth in this clause (f) shall be automatically extended to December 15Borrower does, 2009 without any further action of timely deduct from the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On and after the Forbearance Termination Date, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any or all wages of its employees all payroll taxes and the Lenders’ rights under or in respect make timely and proper deposits of the Loan Documents all payroll and applicable lawother "trust fund" taxes.

Forbearance Conditions. Subject In consideration of the Forbearance provided herein Borrower hereby agrees to each of the following: (a) At all times after the Forbearance Closing, Excess Availability shall be at least $4,000,000. (b) Pursuant to Section 2.12(a) of the Credit Agreement, no new Advance shall bear interest at the LIBOR Rate and upon the termination of any outstanding Interest Period, the applicable Obligation subject to such Interest Period shall bear interest at the Base Rate and such Interest Period may not be renewed or continued. (c) Effective immediately Agent shall charge all costs, fees and expenses to the terms and conditions Loan Account as set forth in Section 2.6(d) of the Credit Agreement without prior notice to Borrower. (d) Borrower shall deliver to Agent “Sell Through Reports” for North America and otherwise in form and substance reasonably acceptable to Agent on a weekly basis by 5:00 p.m. (Pacific time) on the third Business Day of each week, prepared as of the last Business Day of the prior week. The parties hereto acknowledge that each week depicted on such report shall commence on a Sunday and end on the following Saturday. (e) Within 3 Business Days after the Forbearance Closing, Borrower shall deliver to Agent a pledge agreement granting to Agent a Lien in 100% of the total outstanding voting Stock of any first tier Subsidiary of Borrower that is a CFC together with the original Stock certificates with respect thereto, in each case, in form and substance satisfactory to Agent. (f) Notwithstanding the Forbearance provided herein, Agent reserves the Administrative right to exercise any rights afforded to it under Sections 2.3(d)(i), 2.6(c), 2.6(d), 2.10(c), 5.7 and 16(h) of the Credit Agreement and Sections 4, 6(h)(ii), 9 and 10 of the Security Agreement by virtue of the Existing Events of Default. (g) Any Eligible Inventory of Borrower related to Borrower's Udraw product shall be deemed to be ineligible as of November 30, 2012 unless deemed to be ineligible earlier pursuant to the definition of “Eligible Inventory” as set forth in the Credit Agreement. Agent and Lenders agree reserves the right to forbear revise the eligibility criteria with respect to Eligible Accounts, Eligible Inventory or Eligible Titles in its Permitted Discretion without consultation with or approval from exercising their rights and remedies under any Loan Party. (h) At all times during the Loan DocumentsForbearance Period, including Borrower shall have retained Financial Advisors on a full-time basis. The Financial Advisors shall, without limitation, prepare the Approved Projection on behalf of Borrower and assist with the preparation and review of all other financial reports delivered or presented by Borrower to Agent, and provide Borrower with counsel, advice and recommendations regarding Borrower's operations and financial affairs. Borrower agrees that at Agent's request, the Financial Advisors shall be able to communicate directly with and provide financial data, information and reports directly to Agent, its counsel, any financial consultant or advisor retained by Agent or such other professional advisors retained from time to time by Agent, and shall participate in periodic meetings and conference calls with Agent and its professional advisors and counsel, as reasonably requested by Agent. (i) In addition to the financial statements and other reports required to be provided under the Credit Agreement, Borrower shall deliver to the Agent (A) on the third Business Day of each week, a Variance Report for the prior week setting forth the variances from the amounts set forth in the applicable Approved Projection; provided, that the initial Variance Report shall be delivered on November 28, 2012 setting forth the variances for all weeks reflected on the Approved Projection prior such date of delivery, and (B) by no later than November 30, 2012, a 13-week consolidated cash flow forecast (for a period commencing legal action on the week such forecast is delivered) depicting on a weekly and agreed-upon line item bases, projected cash receipts and disbursements, cash balance and Excess Availability and loan balance under the Credit Agreement with respect to enforce the agreements Borrower, and obligations any supporting assumptions relating thereto, in each case, in form and substance reasonably acceptable to Agent (upon receipt and approval by Agent of such 13-week forecast, such forecast shall be deemed an Approved Projection). (i) On any measurement date, Borrower's Actual Net Cash Flow (defined below) shall be no less than Projected Net Cash Flow (defined below) minus 5% of the Obligors under the Loan Documents, until the date Cumulative Disbursements (the “Forbearance Termination Date”) which is the earliest to occur defined below). For purposes of this clause (a) the occurrence or continuance after the date hereof of any Event of Default other than the Events of Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred to herein as “Specified Defaults”j); (bA) the failure foregoing covenant shall be measured weekly (as of the last day of each week reflected on the Approved Projection) on a cumulative basis for a period commencing on the first week in the initial Approved Projection and ending on the last day of the week with respect to which the applicable Variance Report is delivered, upon the Agent's receipt of the initial Variance Report; (B) “Actual Net Cash Flow” means, as of any Obligor measurement date, the North American net cash flow (measured on a cumulative basis for a period commencing on the first week in the initial Approved Projection and ending on the last day of the week with respect to comply with any term or condition which the applicable Variance Report is delivered) as set forth in this Agreement; the Variance Report (c) and calculated on a basis consistent with the occurrence after calculation of Projected Net Cash Flow in the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor or any Affiliate of any Obligor shall commence any litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent or any Lender in connection with any of the transactions contemplated by any of the Loan Documents (which term shall include without limitation this AgreementApproved Projection); (eC) the failure of actual cash flow“Projected Net Cash Flow” means, as projected of any measurement date, the North America net cash flow (measured on a cumulative basis for a period commencing on the first week in the projections to be delivered by initial Approved Projection and ending on the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 30, 2009, to be at least eighty percent (80%) last day of the amount week with respect to which the applicable Variance Report is delivered) as set forth in the Approved Projection for the relevant period of cash flow projected for such month by such projectionsmeasurement; and (fD) November 30“Cumulative Disbursements” means, 2009as of any measurement date, provided that the date set forth in this clause (f) shall be automatically extended to December 15, 2009 without any further action of the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On disbursements (measured on a cumulative basis for a period commencing on the first week in the initial Approved Projection and after ending on the Forbearance Termination Date, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any or all of its and the Lenders’ rights under or in respect last day of the Loan Documents and week with respect to which the applicable lawVariance Report is delivered) as set forth in the Approved Projection for the relevant period of measurement.

Forbearance Conditions. Subject The continued satisfaction of each and every one of the following conditions (collectively, the “Forbearance Conditions”) shall be a condition to the terms agreement of MLCS and conditions MLPFS to stand by and forbear as set forth hereinin Section 2 hereof: (a) Each of the MuniMae Entities and TE Xxxx Xub shall duly and punctually observe, perform and discharge each and every obligation and covenant on its part to be performed under this Agreement. (b) From and after the Administrative Agent Effective Date, there shall occur or exist no breach, Event of Default in respect of a MuniMae Entity or any Termination Event in respect of which a MuniMae Entity is an Affected Party under any of the Swap Agreements (taking into consideration all applicable notice requirements and Lenders agree cure periods provided for in the Swap Agreements), other than the Subject Event of Default. (c) The TE Xxxx Xub Operating Agreement and the TE Xxxx Xub Operating Agreement Amendment shall be complied with in all particulars (taking into consideration all applicable notice requirements and cure periods provided for in such documents). (d) Having achieved the Recapitalization described in the TE Xxxx Xub Operating Agreement Amendment, a portion of each quarterly distribution of Distributable Cash Flow (as such term is defined in the TE Xxxx Xub Operating Agreement Amendment) authorized to forbear from exercising their rights be made by TE Xxxx Xub to its Common Shareholder, beginning with the distribution for the fourth quarter of 2011 and remedies continuing until the end of the Forbearance Period, shall be transferred on such quarterly distribution date by TE Xxxx Xub at the direction of TEI to the collateral account established under the Loan DocumentsMLCS/TEI Swap Agreement (the “Pledge Account”) and be used by TEI from time to time to purchase the outstanding principal amount of the Demand Notes (as defined in Section 26 hereof) or post collateral for the Interest Rate Swap Exposure (as defined below) of the MuniMae Entities (in addition to any scheduled reduction of Interest Rate Swap Exposure or other reduction of such Interest Rate Swap Exposure) in the following minimum amounts and by the following outside dates: (i) $3,120,000 of the distribution for the fourth quarter of 2011 shall be used to purchase the Baxxxxx Xlace Demand Note at par and the balance of such amount shall be posted as collateral for Interest Rate Swap Exposure. (ii) $3,120,000 of the April 2012 distribution shall be posted as collateral for Interest Rate Swap Exposure. (iii) $3,120,000 of the July 2012 distribution shall be posted as collateral for Interest Rate Swap Exposure. (iv) $3,120,000 of the October 2012 distribution shall be posted as collateral for Interest Rate Swap Exposure. (v) $3,120,000 of the January 2013 distribution shall be used to purchase a portion of the remaining Demand Notes at par. (vi) $2,800,000 of the April 2013 distribution shall be used to purchase the remaining Demand Notes at par and $320,000 shall be posted as collateral for Interest Rate Swap Exposure. (e) The MuniMae Entities shall post additional collateral from time to time, including without limitationlimitation from amounts relating to quarterly distributions of Distributable Cash Flow, commencing legal action to enforce the agreements and obligations of extent the Obligors under the Loan Documents, until the date aggregate Interest Rate Swap Exposure exceeds certain limits during certain periods as follows: (the “Forbearance Termination Date”i) which is the earliest to occur of (a) the occurrence or continuance From one day after the date hereof TE Xxxx Xub makes its distribution of any Event Distributable Cash Flow to TEI for the fourth quarter of Default other than the Events of Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred to herein as “Specified Defaults”); (b) the failure of any Obligor to comply with any term or condition set forth in this Agreement; (c) the occurrence after the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor or any Affiliate of any Obligor shall commence any litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent or any Lender in connection with any of the transactions contemplated by any of the Loan Documents (which term shall include without limitation this Agreement); (e) the failure of actual cash flow, as projected in the projections to be delivered by the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 2011 through April 30, 20092012: $14,200,000. (ii) From May 1, to be at least eighty percent 2012 through July 31, 2012: $10,200,000. (80%iii) of the amount of cash flow projected for such month by such projections; and From August 1, 2012 through October 31, 2012: $6,500,000. (fiv) From November 1, 2012 through January 31, 2013: $2,600,000. (v) From February 1, 2013 through April 30, 20092013: $2,400,000. (vi) From May 1, provided that the date set forth in this clause 2013 through June 29, 2013: $1,900,000. (fvii) shall be automatically extended to December 15, 2009 without any further action of the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On From and after the Forbearance Termination DateJune 30, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any or all of its and the Lenders’ rights under or in respect of the Loan Documents and applicable law2013: $0.

Forbearance Conditions. Subject The agreement to forbear set forth in Section II hereof is subject to the terms satisfaction and conditions set forth herein, the Administrative Agent and Lenders agree to forbear from exercising their rights and remedies under the Loan Documents, including without limitation, commencing legal action to enforce the agreements and obligations continuation of the Obligors under the Loan Documents, until the date following conditions (the “"Forbearance Termination Date”) which is the earliest to occur Conditions"): A. Other than any Existing Default, no Event of (a) the occurrence or continuance after the date hereof of any Default, Potential Event of Default other than the Events of or Forbearance Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred to herein as “Specified Defaults”); (b) the failure of any Obligor to comply shall occur. B. Borrower shall have satisfied and be in compliance with any term or condition each term, condition, and representation set forth in this Agreement; (c) the occurrence after the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor . C. Borrower or any Affiliate Guarantor or any of any Obligor their respective affiliates shall commence any not have commenced litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent or any Lender in connection with or related to any of the transactions contemplated by the Loan Documents, this Agreement, the Senior Subordinated Notes, or any other documents, agreements, or instruments executed in connection with this Agreement. D. Borrower shall continue to operate its business on substantially the same basis as it has through the date hereof. E. Other than the Existing Defaults, no event or circumstance shall hereafter occur, or shall heretofore have occurred but is hereafter discovered by Lenders that has a Material Adverse Effect, regardless of whether such event or circumstance would constitute an Event of Default. F. Neither Borrower nor any of its Affiliates shall have made or set aside any payments on account of any Subordinated Indebtedness (including the Loan Documents Senior Subordinated Notes). No Subordinated Indebtedness (which term shall include without limitation this Agreement); (e) including the failure of actual cash flow, as projected in the projections to be delivered by the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 30, 2009, to be at least eighty percent (80%) of the amount of cash flow projected for such month by such projections; and (f) November 30, 2009, provided that the date set forth in this clause (fSenior Subordinated Notes) shall be automatically extended to December 15, 2009 without have been accelerated and neither any further representative (including any trustee) nor the holders thereof shall have taken action of the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On and after the Forbearance Termination Date, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any of their remedies under such Subordinated Indebtedness. G. Trivest III shall have paid to Administrative Agent (i) no later than February 27, 2004, the Shortfall Amount (as defined in the Trivest Guaranty) indicated by Borrower's audited financial statements for Fiscal Year 2003 if such audited financial statements are available by February 27, 2004, or all (ii) no later than March 5, 2004, either (x) the Shortfall Amount indicated on Borrower's audited financial statements for Fiscal Year 2003 if such audited financial statements are available by March 5, 2004, or (y) if Borrower's audited financial statements for Fiscal Year 2003 are not available by March 5, 2004, the sum of its and the Lenders’ rights under or in respect of the Loan Documents and applicable law$3,492,000.