Common use of Forbearance Defaults Clause in Contracts

Forbearance Defaults. The following events shall constitute “Forbearance Defaults”): (a) any failure to pay principal payments (other than the Anticipated Principal Payment Default), interest payments (other than the Interest Payment Event of Default and the Anticipated Swap Interest Payment Default) or any other payments in accordance with the terms of the Credit Agreement or the Interest Rate Protection Agreement; or (b) any Borrower or Loan Party shall fail to observe or perform any other term, covenant, or agreement binding on it contained in this Agreement, or any other agreement, instrument, or document executed in connection with this Agreement; or (c) the occurrence of an Event of Default under the Credit Agreement, the Interest Rate Protection Agreement or any of the other Financing Documents or any Project Document, other than an Existing Event of Default, an Anticipated Default, the Interest Payment Event of Default, the Anticipated Principal Payment Default, the Anticipated Swap Interest Payment Default or either of the Interest Rate Protection Agreement Events of Default; (d) any instrument, document, report, schedule, agreement, representation or warranty, oral or written, made or delivered to the Agent or any Senior Secured Parties by any Borrower or Loan Party shall be false or misleading in any material respect when made, or deemed made, or delivered; or (e) the proceeds of the Junior Notes shall have been fully utilized by Pacific Ethanol, Kinergy and the Borrowers on or before April 30, 2009, or for any reason Pacific Ethanol fails to make available, or is unable to make available, to any Borrower, funds adequate to support such Borrower’s current level of operations (taking into account any other sources of funding available to such Borrower). Upon the occurrence of any Forbearance Default, the Agent, upon the direction of the Required Senior Secured Parties, may by notice to Borrowers immediately terminate the Forbearance Period and/or declare all of the Obligations immediately due and payable; provided, however, that upon the occurrence of any Event of Default described in Section 9.01(i) of the Credit Agreement, the Forbearance Period shall automatically terminate and all Obligations shall automatically become immediately due and payable, without notice or demand of any kind. Upon the termination or expiration of the Forbearance Period, if at such time the outstanding amount of the Obligations have not been paid in full, the Agent and the Senior Secured Parties shall be entitled to exercise all of their rights and remedies under the Credit Agreement, the Interest Rate Protection Agreement, the other Financing Documents and applicable law, including, without limitation, the right to declare all of the Obligations to be immediately due and payable and to enforce their liens on, and security interests in, the Collateral. The occurrence of any Forbearance Default shall constitute an Event of Default under the Credit Agreement, the Interest Rate Protection Agreement and the other Financing Documents.

Forbearance Defaults. The following events shall constitute “Forbearance Defaults”):: (a) any failure to pay principal payments (other than the Anticipated Principal Payment Default), interest payments (other than the Interest Payment Event of Default and the Anticipated Swap Interest Payment Default) or any other payments in accordance with the terms of the Credit Agreement or the Interest Rate Protection Agreement; or (b) any Borrower or Loan PE Party shall fail to observe or perform any other term, covenant, or agreement binding on it contained in this Agreement, or any other agreement, instrument, or document executed in connection with this Agreement; or (cb) the occurrence of an Event a default or event of Default default under the Credit AgreementNote, the Interest Rate Protection Agreement Xxxxx Mechanical Note or any of the other Financing Documents or any Project DocumentLoan Documents, other than an the Existing Event of Default, an Defaults or the Anticipated Default, the Interest Payment Event of Default, the Anticipated Principal Payment Default, the Anticipated Swap Interest Payment Default or either of the Interest Rate Protection Agreement Events of Default;; or (dc) any instrument, document, report, schedule, agreement, representation or warranty, oral or written, made or delivered to the Agent Lender or any Senior Secured Parties Xxxxx Mechanical by any Borrower or Loan PE Party shall be false or misleading in any material respect when made, or deemed made, or delivered; or (d) any event of default has occurred and is outstanding under the WestLB Forbearance Agreement, or the Wachovia Forbearance Agreement, or any such forbearance agreement has terminated; or (e) the proceeds of the Junior Notes shall have been fully utilized by Pacific Ethanolthe PE Parties, Kinergy and the Borrowers Plant Entities, PEHC or any of them on or before April 30, 2009, or for any reason Pacific Ethanol the Company fails to make available, or is unable to make available, to any Borrowerof the PE Entities, funds adequate to support such BorrowerPE Entity’s current level of operations (taking into account any other sources of funding available to such BorrowerPE Entity). Upon the occurrence of any Forbearance Default, the Agent, upon the direction of the Required Senior Secured Parties, Lender and/or Xxxxx Mechanical may by notice to Borrowers the PE Parties immediately terminate the Forbearance Period and/or declare all of the Obligations obligations under the Xxxxx Mechanical Note immediately due and payable; provided, however, that upon the occurrence of any Event event of Default default described in Section 9.01(isub-paragraph (c) (Voluntary Bankruptcy or Insolvency Proceeding) or (d) (Involuntary Bankruptcy or Insolvency Proceeding) of Section 4 of the Credit AgreementNote, and as described in sub-paragraph (b) (Voluntary Bankruptcy or Insolvency Proceeding) or (c) (Involuntary Bankruptcy or Insolvency Proceeding) of Section 3 of the Xxxxx Mechanical Note, the Forbearance Period shall automatically terminate and all Obligations obligations under the Xxxxx Mechanical Note shall automatically become immediately due and payable, without notice or demand of any kind. Upon the termination or expiration of the Forbearance PeriodPeriod (including without limitation a termination of the Forbearance Period pursuant to this Section 5), if at such time the outstanding amount of the Obligations obligations under the Loan Documents and the Xxxxx Mechanical Note have not been paid in full, the Agent Lender and the Senior Secured Parties Xxxxx Mechanical shall be entitled to exercise all of their rights and remedies under the Credit AgreementNote, the Interest Rate Protection AgreementXxxxx Mechanical Note, the other Financing Loan Documents and applicable law, as the case may be, including, without limitation, the right to declare all of the Obligations obligations under the Xxxxx Mechanical Note to be immediately due and payable payable, without notice or demand of any kind, and the right to enforce their any liens on, and security interests in, the Collateralproperty of any PE Party in which Lender has been granted a security interest under any of the Loan Documents and enforce the PAP Guaranty and the PECA Guaranty. The occurrence of any Forbearance Default shall constitute an additional Event of Default under the Credit AgreementNote, the Interest Rate Protection Agreement Xxxxx Mechanical Note and the other Financing Loan Documents, and the Note, the Xxxxx Mechanical Note, and each of the other Loan Documents is hereby deemed amended to incorporate such additional Event of Default.

Forbearance Defaults. The Each of the following events shall constitute “a Forbearance Defaults”):Default, absent the prior written approval by Capital: (a) the existence of any failure to pay principal payments Event of Default (other than the Anticipated Principal Payment Default), interest payments (other than the Interest Payment Event of Default and the Anticipated Swap Interest Payment a Designated Default) under the Loan Documents, provided, however, that in determining whether or any other payments in accordance with not the terms outstanding Loans are within permissible borrowing formulae, the amount of Loans resulting from the charging of the Credit Agreement or the Interest Rate Protection Agreement; orForbearance Fee shall not be included. (b) any Borrower or Loan Party shall fail to observe keep or perform any other termof the terms, covenantobligations, covenants or agreement binding on it agreements contained in this Agreement, Agreement or any other agreement, instrument, or document executed in connection with this Agreement; orunder the Loan Documents; (c) if any representation or warranty of Borrower herein shall be false, misleading or incorrect in any respect; (d) the occurrence of an Event any event, condition, obligation, liability or circumstance or set of Default events, conditions, obligations, liabilities or circumstances or any change(s) which (i) has, had or could reasonably be expected to have any material adverse effect upon or change in the validity or enforceability of any Loan Document or this Agreement, (ii) has been or could reasonably be expected to be material and adverse to the value of any of the Collateral or to the business, operations, prospects, properties, assets, liabilities or condition of Borrower and/or Guarantors, either individually or taken as a whole, or (iii) has materially impaired or could reasonably be expected to materially impair the ability of Borrower or Guarantors to perform the Obligations or to consummate the transactions under the Credit Loan Documents or this Agreement; (e) Borrower or any third party shall threaten or assert any claim, or commence any action, suit or proceeding, against Capital contesting or challenging the Interest Rate Protection validity, priority, perfection or enforceability of this Agreement or any of the other Financing Documents or any Project DocumentLoan Documents, other than an Existing Event of Default, an Anticipated Default, the Interest Payment Event of Default, the Anticipated Principal Payment Default, the Anticipated Swap Interest Payment Default or either of the Interest Rate Protection Agreement Events Obligations, or of Defaultany interest of Capital in the Collateral; (df) any instrument, document, report, schedule, agreement, representation or warranty, oral or written, made or delivered to Failure of the Agent or any Senior Secured Parties by any Borrower or Loan Party shall be false or misleading ALS, LLC, after the Forbearance Period, to comply in any material respect when madewith any of the terms and conditions of that certain Employer Services Agreement bearing the effective date of August 13, 2004 between Borrower and ALS, LLC, as the same may be amended, supplemented, modified or deemed maderestated from time to time or such Employer Outsourcing Agreement shall hereafter be amended, supplemented, modified or deliveredrestated without Capital’s written consent; orand (eg) the proceeds Failure of the Junior Notes shall have been fully utilized by Pacific EthanolBorrower to pay when due any fees, Kinergy and the Borrowers on costs or before April 30, 2009, or for any reason Pacific Ethanol fails expenses owing to make available, or is unable to make available, to any Borrower, funds adequate to support such Borrower’s current level of operations (taking into account any other sources of funding available to such Borrower). Upon the occurrence of any Forbearance Default, the Agent, upon the direction of the Required Senior Secured Parties, may by notice to Borrowers immediately terminate the Forbearance Period and/or declare all of the Obligations immediately due and payable; provided, however, that upon the occurrence of any Event of Default described in Section 9.01(i) of the Credit Agreement, the Forbearance Period shall automatically terminate and all Obligations shall automatically become immediately due and payable, without notice or demand of any kind. Upon the termination or expiration of the Forbearance Period, if at such time the outstanding amount of the Obligations have not been paid in full, the Agent and the Senior Secured Parties shall be entitled to exercise all of their rights and remedies under the Credit Agreement, the Interest Rate Protection Agreement, the other Financing Documents and applicable lawCapital, including, without limitation, the right remaining $50,000 portion of that certain consent fee in the amount of $150,000 agreed to declare all of the Obligations to be immediately on June 10, 2005, which is due and payable in full on August 12, 2005. (h) Failure of Borrower to comply with that certain forbearance agreement between Borrower and to enforce their liens onALS, and security interests in, the Collateral. The occurrence LLC of any Forbearance Default shall constitute an Event of Default under the Credit Agreement, the Interest Rate Protection Agreement and the other Financing Documentseven date.

Forbearance Defaults. The following events shall constitute “Forbearance Defaults”): (a) any failure to pay principal payments (other than the Anticipated Principal Payment Default)payments, interest payments (other than the Interest Payment Event of Default and the Anticipated Swap Interest Payment Default) or any other payments in accordance with the terms of the Credit Agreement or the Interest Rate Protection Agreement; or (b) any Borrower or Loan Party shall fail to observe or perform any other term, covenant, or agreement binding on it contained in this Agreement, or any other agreement, instrument, or document executed in connection with this Agreement; or (c) the occurrence of an Event of Default under the Credit Agreement, the Interest Rate Protection Agreement or any of the other Financing Documents or any Project Document, other than an Existing Event of Default, an Anticipated Default, the Interest Payment Event of Default, the Anticipated Principal Payment Default, the Anticipated Swap Interest Payment Default or either of the Interest Rate Protection Agreement Events of Default;; or (d) any instrument, document, report, schedule, agreement, representation or warranty, oral or written, made or delivered to the Agent or any Senior Secured Parties by any Borrower or Loan Party shall be false or misleading in any material respect when made, or deemed made, or delivered; or (e) the proceeds of the Junior Notes shall have been fully utilized by Pacific Ethanol, Kinergy and the Borrowers on or before April 30, 2009, or for any reason Pacific Ethanol fails to make available, or is unable to make available, to any Borrower, funds adequate to support such Borrower’s current level of operations (taking into account any other sources of funding available to such Borrower). Upon the occurrence of any Forbearance Default, the Agent, upon the direction of the Required Senior Secured Parties, may by notice to Borrowers immediately terminate the Forbearance Period and/or declare all of the Obligations immediately due and payable; provided, however, that upon the occurrence of any Event of Default described in Section 9.01(i) of the Credit Agreement, the Forbearance Period shall automatically terminate and all Obligations shall automatically become immediately due and payable, without notice or demand of any kind. Upon the termination or expiration of the Forbearance Period, if at such time the outstanding amount of the Obligations have not been paid in full, the Agent and the Senior Secured Parties shall be entitled to exercise all of their rights and remedies under the Credit Agreement, the Interest Rate Protection Agreement, the other Financing Documents and applicable law, including, without limitation, the right to declare all of the Obligations to be immediately due and payable and to enforce their liens on, and security interests in, the Collateral. The occurrence of any Forbearance Default shall constitute an Event of Default under the Credit Agreement, the Interest Rate Protection Agreement and the other Financing Documents.