Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law. (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults. (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders. (d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement. (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 5 contracts
Samples: Forbearance Agreement (McLeodusa Inc), Forbearance Agreement (McLeodusa Inc), Forbearance Agreement (McLeodusa Inc)
Forbearance. (a) The Participant Lenders Parties agree and acknowledge that until if the expiration Restructuring Transactions have not been consummated prior to July 15, 2016, in order to consummate the Restructuring Transactions, SAE will not make the interest payment due to be paid on July 15, 2016 under the terms of the Forbearance PeriodNotes Indenture and will instead enter into the 30 day grace period with respect to such payment as permitted by the Notes Indenture.
(b) For so long as the Termination Date has not occurred, the Participant Lenders will temporarily forbear (and subject to the terms hereoflimitations provided in clause (c) below, each Supporting Holder (severally and not jointly), agrees until August 15, 2016:
(i) to forbear from the exercise of their default-related any rights and remedies under against SAE to which the Credit Agreements, Loan Documents Supporting Holders or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions Indenture Trustee are or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance may become entitled as a result of any Default or Event of Default; provided further that Default (each as defined in the agreement of Existing Notes Indenture) arising or existing under the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief Existing Notes Indenture in respect of adequate protection SAE’s failure to make the interest payment on July 15, 2016 and decision to enter into the grace period in respect thereof (the “Potential Default”);
(ii) to refrain from exercising any right and remedy that may become available to it under the Existing Notes Indenture by reason of the Potential Default (other than, in the case of the Indenture Trustee, ordinary course acts which it may take under the Existing Notes Indenture which would not adversely affect any other Party); and
(iii) to refrain from initiating, joining in, or relief encouraging in any way an instruction or direction from any stay imposed under such law.
(b) Upon a Termination Event, Noteholder to the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Indenture Trustee to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Existing Notes Indenture in connection with any or all of the Defaults and Events of Potential Default, including, without limitation, the Specified Defaults.
(c) For so long as the avoidance Termination Date has not occurred, SAE on behalf of doubtitself and the guarantors party to the Existing Notes Indenture, nothing herein limits the right agrees not to make any payment to any Noteholder in respect of the Administrative Agent or interest payment due on July 15, 2016 prior to the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes expiration of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersapplicable grace period.
(d) Execution of Nothing contained in this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatSection 3 shall impair, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower impede or otherwise prevent any Supporting Holder or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear Indenture Trustee from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all any rights and remedies that the Administrative Agent and the Lenders now against SAE in respect of any other Default or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Event of Default (including without limitation arising under the Specified Defaults)Existing Notes Indenture or taking any other action available to it by reason of such a Default or Event of Default.
Appears in 4 contracts
Samples: First Supplemental Indenture (SAExploration Holdings, Inc.), Security Agreement (SAExploration Holdings, Inc.), Credit and Security Agreement (SAExploration Holdings, Inc.)
Forbearance. The Loan Parties acknowledge and agree that (a) The Participant Lenders agree that until the expiration Designated Events of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Default have occurred and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower are continuing and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a upon the Forbearance Termination Event, Date (defined below) the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies forbearance provided under this Section 1 shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower Agents and Lenders shall have the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed right to exercise any and all of their respective rights and remedies under any Section 9.01 of the Credit Agreement or all of otherwise under the Loan Documents and/or or under applicable law, including, without limitation, their respective rights law or at equity due to such Designated Events of Default or any other Event of Default that has occurred and remedies in connection with any or all is continuing. The Agents and Lenders hereby agree as of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder date hereof to forbear from exercising their default-related any rights or remedies under Section 9.01 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity with respect to the Specified Defaults shall Designated Events of Default until the earliest of (i) the occurrence of a breach or default under this Agreement, (ii) the occurrence of a Default or Event of Default that does not constitute a waiver Designated Event of such Specified Defaults Default, (iii) the Disposition of all or substantially all of the assets of the Borrower or (iv) the sixth month anniversary of the First Amendment Date (the “Forbearance Termination Date”). The Loan Parties acknowledge and agree that, if any breach or default under this Agreement occurs, or if a Default or Event of Default occurs that does not constitute a Designated Event of Default, in each case after the date hereof, the Forbearance Termination Date shall be deemed to have occurred immediately prior thereto, this Section 1 shall cease to be effective, and the Agents and Lenders expressly reserve shall be entitled to (x) terminate all Commitments under the Credit Agreement and declare all of the Loans then outstanding to be due and payable, whereupon the aggregate principal of all Loans, all accrued and unpaid interest thereon, all fees and all other amounts payable under the Credit Agreement and the other Loan Documents shall become due and payable immediately, without presentment, demand, protest or further notice of any kind and (y) exercise immediately their rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or and under applicable law in connection with all or at equity. Each Loan Party hereby further acknowledges and agrees that from and after the Forbearance Termination Date, the Agents and Lenders shall be under no obligation of any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Defaults and Events or any other Event of Default (including without limitation whether similar or dissimilar to the Specified DefaultsDesignated Events of Default).
Appears in 2 contracts
Samples: Forbearance Agreement, Forbearance Agreement and Amendment Number One to Credit Agreement (Imperial Petroleum Inc)
Forbearance. (a) The Participant Lenders agree that until Each Obligor specifically acknowledges the expiration existence and continuation of the Forbearance PeriodSpecified Defaults. In reliance on the representations, the Participant Lenders will temporarily forbear (warranties, covenants and agreements contained in this Agreement, and subject to the terms hereof) from satisfaction of each condition precedent set forth in Section 4 hereof but only so long as no Termination Event shall have occurred and except as permitted by this Agreement, the exercise of their default-related remedies under Agent, the Credit Agreements, Loan Documents or otherwise, against the Borrower Lenders and the Subsidiary Guarantors solely Issuing Banks hereby agree to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply forbear during the Forbearance Period with from exercising their rights and remedies under the Loan Documents (including any right under Section 2.2.3 or 2.3.3 of the Loan Agreement, any right of setoff (excluding the Agent’s right to charge on account under Section 4.1.1(b) of the Loan Agreement, it being understood and agreed that any deemed making of any representations and warranties by the Borrowers on account of such charge shall, if such representations and warranties are not true and correct, for all provisions, limitations, restrictions purposes hereof be treated as a Specified Default) and any right under a power of attorney granted pursuant to Section 8.5(b) of the Loan Agreement) and applicable law arising as a result of the occurrence or prohibitions that would otherwise be effective or applicable under continuance of any of the Loan Documents during Specified Defaults. Notwithstanding the continuance foregoing, the forbearance granted by the Agent, the Lenders and the Issuing Banks shall not constitute and shall not be deemed to constitute a waiver of any of the Specified Defaults or of any other Default or Event of Default; provided further that Default under the Loan Documents. On and after the Termination Date, the Agent’s, the Lenders’ and the Issuing Banks’ agreement of the Participant Lenders temporarily hereunder to forbear shall not apply to nor preclude terminate automatically without further act or action by the Agent, any remedy available to Lender or any Issuing Bank, and the Administrative Agent or Agent, the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Issuing Banks shall be entitled to exercise any and all of their respective rights and remedies available to them under this Agreement and the other Loan Documents, at law, in equity or otherwise without any further lapse of time, expiration of applicable grace periods or requirements of notice, all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) which are hereby expressly waived by each Obligor. For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the i) an exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatcash dominion rights, notwithstanding anything to the contrary in the Credit Agreementswhen applicable, the Administrative Agent shall not be required subject to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms forbearance (other than implementing cash dominion solely as a result of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults), (ii) the foregoing forbearance shall not prohibit the Agent from delivering notices relating to the Borrowing Base or notices of Default, Event of Default or a Termination Event, (iii) any Overadvance that occurs under Section 2.1.5 of the Loan Agreement shall not be subject to forbearance, and (iv) the foregoing forbearance shall not limit or prohibit the Agent from making Protective Advances in its discretion pursuant to Section 2.1.6 of the Loan Agreement (it being understood and agreed that any deemed making of any representations and warranties by the Borrowers on account of any such making of Protective Advances shall, if such representations and warranties are not true and correct, for all purposes hereof be treated as a Specified Default).
Appears in 2 contracts
Samples: Limited Forbearance Agreement, Limited Forbearance Agreement (Willbros Group, Inc.\NEW\)
Forbearance. (a) The Participant Lenders agree that until In consideration of the expiration Credit Parties’ agreement to timely comply with the terms of this Agreement, and in reliance upon the representations, warranties, agreements and covenants of the Credit Parties set forth herein, subject to the satisfaction of each of the conditions precedent to the effectiveness of this Agreement, during the Forbearance Period, the Participant Lenders will temporarily Agent and each Lender (severally and not jointly) hereby agree to forbear (subject to the terms hereof“Forbearance”) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under exercising any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available Rights and Remedies with respect to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveForbearance Defaults. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, each Lender agrees that it (individually or collectively) will not deliver any notice or instruction to take the Agent directing the Agent, in each case, to exercise any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower Rights and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in Remedies under the Credit Agreements, the Administrative Agent shall not be required to act if directed Documents or applicable Law against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Credit Parties with respect to the Specified Defaults Forbearance Defaults. For the avoidance of doubt, this Agreement shall not, except as provided herein, (a) prevent the Lenders from receiving payments of principal and interest when due or (b) limit any other available rights or remedies of the Agent and/or the Lenders. The agreements set forth herein shall not constitute a waiver of such Specified the Forbearance Defaults nor shall it be an agreement to forbearance with regard to any other Defaults or Events of Default that may be continuing on the date hereof, or any Defaults or Events of Default that may occur after the date hereof, whether similar in kind or otherwise to the Forbearance Defaults and that shall not constitute a waiver, express or implied, of any of the Lenders expressly reserve all rights and remedies that of the Administrative Agent and the Lenders now or may in under the future have under any or all terms of the Loan Credit Agreement or any other Credit Documents and/or applicable law in connection with all Defaults and Events on any future occasion or otherwise. The Forbearance set forth herein shall not impose or imply any obligation on the Agent or the Lenders to grant a forbearance of any Event of Default (including without limitation the Specified Defaults)on any future occasion.
Appears in 2 contracts
Samples: Forbearance Agreement (J.Jill, Inc.), Forbearance Agreement (J.Jill, Inc.)
Forbearance. Subject to the terms and conditions set forth herein, Wachovia hereby agrees that, during the Forbearance Period (a) The Participant Lenders agree that until as defined below), Wachovia shall forbear from exercising any and all rights or remedies available to Wachovia under the expiration Repurchase Documents and the Master Agreement as a result of the Forbearance PeriodExisting Events of Default (including, without limitation, the Participant Lenders will temporarily collection of default interest under the Repurchase Documents and Master Agreement), but only to the extent that such rights or remedies arise exclusively as a result of the existence or continuation of the Existing Events of Default; provided, however; (i) that Wachovia shall be free to exercise any or all of Wachovia's rights and remedies (including, without limitation, the collection of default interest under the Repurchase Documents and Swap Documents from and after the occurrence of a Forbearance Termination Event) under the Repurchase Documents, Master Agreement or Applicable Law arising on account of the Existing Events of Default (or any other event of default) at any time upon or after the occurrence of a Forbearance Termination Event (as defined below), (ii) in connection with the Repurchase Documents, Wachovia shall have no obligation to purchase or finance any new Asset or make any advance of Purchase Price or other amounts with respect to any existing Purchased Assets or new Assets unless consented to in writing by Wachovia, which consent may be granted or refused by Wachovia in its sole and absolute discretion, (iii) in connection with the Master Agreement, Wachovia shall have no obligation to enter into a Transaction (as defined in the Master Agreement) unless consented to in writing by Wachovia, which consent may be granted or refused by Wachovia in its sole and absolute discretion, and (iv) no amounts under clause NINTH of Section 2.8 of the Repurchase Agreement shall be transferred to the Operating Account or the Quadra Entities, but, instead, all such amounts shall be applied to the outstanding Obligations under the Repurchase Documents and the obligations and liabilities under the Swap Documents. Wachovia agrees to waive any default interest that accrued prior to the date of this Agreement under the Repurchase Documents and the Master Agreement as a result of the Existing Events of Default. Notwithstanding Wachovia's agreement to forbear (on account of the Existing Events of Default subject to the terms hereof) from and conditions set forth herein, the exercise Existing Events of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Default shall continue to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply exist during the Forbearance Period with for all provisionspurposes under the Repurchase Agreement and Master Agreement, limitations, restrictions or prohibitions that would otherwise be effective or applicable under including any limitations on actions of the Loan Documents during Quadra Entities that may be triggered upon the continuance existence of any an Event of Default (as defined in the Repurchase Agreement) or Event of Default; provided further Default (as defined under the Master Agreement). The Quadra Entities acknowledge and agree that the agreement this Agreement does not constitute a waiver of the Participant Lenders temporarily Existing Events of Default, a waiver of any other Event of Default (as defined in the Repurchase Agreement) or Event of Default (as defined in the Master Agreement) (whether now or in the future) or a waiver or forbearance (except as expressly set forth herein) of any other term, provision, duty, obligation, covenant, liability, right, remedy, power or remedy of any party to forbear the Repurchase Documents and Master Agreement, and the forbearance evidenced hereby shall not apply be a waiver of Wachovia's rights to nor preclude refuse to enter into any remedy available future forbearance agreements. For the avoidance of doubt, this Agreement shall not limit, restrict or impair in any way any of Wachovia's rights under the Repurchase Documents and/or Swap Documents which are unrelated to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies upon an Event of Default under any either the Repurchase Documents or all of the Loan Documents and/or applicable lawSwap Documents, including, without limitation, their respective Wachovia's rights to xxxx to market and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, rights to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights")make margin calls. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors The Quadra Entities acknowledge and agree that execution they may not sell, finance or otherwise transfer any Purchased Asset without Wachovia's prior written consent thereto in its sole and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent absolute discretion and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Wachovia shall not be required to act if directed against release its Lien on any Purchased Asset until all Obligations under the Borrower or Repurchase Documents and all obligations and liabilities then due and payable under the Subsidiary Guarantors if such action is contrary to the terms of this AgreementSwap Documents are paid in full.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 2 contracts
Samples: Forbearance Agreement, Forbearance Agreement (Quadra Realty Trust, Inc.)
Forbearance. (a) The Participant Lenders agree that until Upon the expiration satisfaction of the Forbearance Periodconditions precedent set forth in Section 3 of this Agreement and in reliance on the representations, warranties and agreements of the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Issuers and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided herein contained, each Forbearing Holder hereby agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period it will not, directly or indirectly, take any Remedial Action with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any respect to the Notes solely as a result of the Loan Documents Excess Cash Flow Prepayment Default or the failure to pay interest in excess of a rate per annum equal to 14%, provided, however, that interest shall continue to accrue at the Post-Default Rate while the Excess Cash Flow Prepayment Default is continuing. The foregoing limited forbearance shall not be construed to impair the ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the continuance Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of any Default or Event of other than the Excess Cash Flow Prepayment Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately and automatically cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuers and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Indenture and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, Notes (including, without limitation, their respective rights payment of any unpaid accrued interest at the Post-Default Rate) without giving effect to the forbearance set forth herein.
(c) Except for the forbearance to the extent expressly set forth above in subsection 2(a), each Forbearing Holder reserves each and remedies in connection every right and remedy it may have under the Notes, the Indenture, the Security Documents, any agreement relating thereto and under applicable law with any or all of respect to the Defaults and Events of Excess Cash Flow Prepayment Default, including, without limitation, the Specified Defaults.
right to continue to charge and accrue (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including but not collect during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than ) interest at the Borrower Post-Default Rate. The Issuers and the Subsidiary Guarantors ("Third Party Rights"). For purposes each of the foregoing, the Borrower and the Subsidiary Guarantors hereby acknowledge and agree that execution interest at the Post-Default Rate shall accrue from and delivery of this Agreement after November 5, 2012. Nothing herein shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything be deemed to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified Defaults and that any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Lenders Excess Cash Flow Prepayment Default), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Security Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 2 contracts
Samples: Forbearance Agreement (FriendFinder Networks Inc.), Forbearance Agreement (FriendFinder Networks Inc.)
Forbearance. (a) The Participant Lenders agree that until Subject to the expiration satisfaction of the conditions precedent in Section 5, for the period (hereinafter referred to as the “Forbearance Period”) beginning on the Effective Date and ending on the Forbearance Termination Date defined in Section 4(b), the Participant Lenders will temporarily Agent and Lenders, without waiving, curing or affecting the Stated Defaults, hereby agree to forbear (subject to the terms hereof) from the exercise of any of their default-related rights and remedies available under the Credit Agreements, Loan Agreement and other Loan Documents or otherwise, against on account of the Borrower Stated Defaults. The Agent’s and the Subsidiary Guarantors solely Lenders’ forbearance provided for herein shall be effective only with respect to the extent the availability of such remedies arises exclusively from the Specified Stated Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a The Forbearance Period will terminate upon the earlier to occur of the following (the “Forbearance Termination Date”):
(i) November 1, 2009, at 5:00 p.m. (California time), or
(ii) the occurrence of any other Forbearance Termination Event.
(c) During the Forbearance Period and provided no Forbearance Termination Event has occurred, and further provided that the terms and conditions of this Agreement are satisfied, the agreement Agent and Lenders agree that they will not exercise any default remedies against the Borrower or the Guarantors (except as otherwise expressly provided in this Agreement) as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Stated Defaults.
(d) On the requirement of any demand, presentment, protest or notice of any kindForbearance Termination Date, all of which forbearances, deferrals and indulgences granted by the Borrower Agent and Lenders in this Section 4 shall automatically terminate, and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed shall thereupon be entitled immediately to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawDocuments, this Agreement and otherwise available at law or in equity, including, without limitation, their respective rights publishing a notice of default under the Deed of Trust and remedies in connection with any foreclosing on the Property, and all other Collateral, all without further notice or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making demand of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementkind.
(e) The Borrower Parties understand and the Subsidiary Guarantors specifically acknowledge and agree that the agreement forbearance provided in this Agreement does not relate or extend to any actions that the Agent or Lenders may take under the Loan Documents, at law or in equity, to preserve and protect any of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may collateral described in the future have under any or all of the Loan Documents and/or applicable law or the interests of the Agent or Lenders in connection with all Defaults any such collateral, including, without limiting the generality of the foregoing (i) the defending of or intervention in actions or assertions of claims (such as foreclosure proceedings, mechanics’ liens filings or proceedings, and Events stop notices) brought or made by third parties or by any Borrower Party, relating to any such collateral or the interests of Default the Agent or Lenders, or (including ii) the sending of notices to any persons or entities concerning (A) the rights of the Agent or Lenders under the Loan Documents (including, without limitation limitation, the Specified Defaults)filing of a proof of claim in any bankruptcy proceeding) and (B) the existence of security interests or liens in favor of the Agent or Lenders relating to such collateral.
(f) [Intentionally Omitted.]
(g) Notwithstanding anything to the contrary herein or in the Loan Documents, from and after the Effective Date neither Agent nor Lenders shall have any obligation to make Loans or any other advances under the Loan Documents.
Appears in 2 contracts
Samples: Forbearance Agreement (California Coastal Communities Inc), Forbearance Agreement (California Coastal Communities Inc)
Forbearance. (a) The Participant Lenders agree that until the expiration All rights and remedies of the Forbearance PeriodIndenture Trustee and the Noteholders in connection with the Section 4.06 Default, the Participant Lenders will temporarily forbear Acknowledged Event of Default, and the occurrence of any of the matters listed on the attached Schedule 1 entitled “Non-Termination Events” (subject the “Non-Termination Events”) are hereby reserved, and nothing set forth herein or contemplated hereby is intended to be, nor shall be construed as, a waiver or acquiescence to the terms hereof) Section 4.06 Default, the Acknowledged Event of Default, the Non-Termination Events, or any other current or future Default under the Indenture nor constitute or be construed as an agreement by the Indenture Trustee or the Noteholders to forbear from the exercise of their default-related any rights and remedies available to them under the Credit Agreements, Loan Documents Indenture or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable laware hereby expressly reserved; provided, includinghowever, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitationthat except as otherwise specifically provided herein, the Specified Defaults.
(c) For Indenture Trustee and the avoidance of doubtNoteholders shall, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies issuing (i) a Notice of Acceleration with respect to the Specified Defaults Acknowledged Event of Default or (ii) a Notice of Acceleration or a Notice of Default with respect to any of the Non-Termination Events, and shall not constitute a waiver comply with the restrictions on the prosecution of such Specified Defaults the claims asserted in the Delaware Action as provided for in this Agreement; and provided, further, that the Lenders expressly reserve all rights and remedies that the Administrative Agent Indenture Trustee and the Lenders now or may in the future have under Noteholders shall be free to exercise any or all of their rights and remedies arising under the Loan Documents and/or applicable law in connection Indenture with all Defaults regard to the Section 4.06 Default, the Acknowledged Event of Default, and the Non-Termination Events of Default (including without limitation at any time after the Specified Defaults)Forbearance Termination Date.
Appears in 2 contracts
Samples: Forbearance Agreement, Forbearance Agreement (Tropicana Finance Corp)
Forbearance. (a) The Participant Lenders agree Each of the Class A Certificateholders agrees that until the expiration of the Forbearance PeriodPeriod (as defined below), it will not, as part of a majority in interest of Fractional Undivided Interests in the Participant Lenders will temporarily forbear (subject Class A Trust or in any other capacity direct the Class A Trustee, when the Class A Trustee is the Controlling Party or otherwise, to cause the terms hereof) from Subordination Agent and the Mortgagees to exercise any of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Atlas solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided Defaults (the "CLASS A FORBEARANCE"). Each of the Class A Certificateholders further agrees (i) to join in executing and causing to be delivered to the Class A Trustee, with a copy to the Subordination Agent and Mortgagees, at or about the time that a Specified Default occurs, a letter (a "FORBEARANCE INSTRUCTION LETTER") instructing the Borrower Class A Trustee to instruct the Subordination Agent and Mortgagees (an "INSTRUCTION LETTER TO SUBORDINATION AGENT AND MORTGAGEES") to forbear from exercising any default-related remedies until the Subsidiary Guarantors shall comply Subordination Agent or Mortgagees receive instructions to the contrary ("CONTRARY INSTRUCTIONS") from the Class A Trustee, which Forbearance Instruction Letter will instruct the Class A Trustee not to give any such Contrary Instructions during the Forbearance Period with all provisionsunless it is directed to do so by the holders of a majority in interest of Fractional Undivided Interests in the Class A Trust, limitations(ii) to refrain from directing the Class A Trustee to give any such Contrary Instructions during the Forbearance Period, restrictions or prohibitions that would otherwise be effective or applicable under any and (iii) to provide to Atlas a copy of the Loan Documents during Forbearance Instruction Letter (and, if such Class A Certificateholder receives a copy of an Instruction Letter to Subordination Agent and Mortgagees, a copy of such letter) and a return receipt or other evidence indicating the continuance of any Default or Event of Default; provided further that the agreement delivery of the Participant Lenders temporarily Forbearance Instruction Letter to forbear the Class A Trustee, provided that, (w) nothing in the Forbearance Instruction Letter, the Instruction Letter to Subordination Agent and Mortgagees, or in this Agreement is intended to or shall prevent any Mortgagee, Subordination Agent, Class A Trustee, Class A Certificateholder or other person from (A) giving notice of the occurrence of a Default under a Lease or Indenture (it being understood that, except for providing that notice of a Default may be given, this clause (A) does not limit or affect in any way the agreements of the Class A Certificateholders that are set forth above in this Section 2(a), or (B) exercising its right to cause one or more LTV Appraisals to be obtained pursuant to the Intercreditor Agreement, (x) the Class A Certificateholders shall not apply be required to nor preclude obtain any remedy available acknowledgement or agreement from the Class A Trustee with respect to the Administrative Forbearance Instruction Letter and the Class A Trustee shall not be required to obtain any acknowledgement or agreement from the Mortgagees or Subordination Agent with respect to the Instruction Letter to Subordination Agent and Mortgagees, (y) the Class A Certificateholders shall not be required to provide any indemnity or other inducement for the Lenders Class A Trustee, Subordination Agent, or Mortgagees to comply with such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees, and (z) the Class A Certificateholders give no representation or warranty as to the effect of such Forbearance Instruction Letter or Instruction Letter to Subordination Agent and Mortgagees or as to whether the Class A Trustee will in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, fact send such Instruction Letter to any relief in respect of adequate protection or relief from any stay imposed under such lawSubordination Agent and Mortgagees.
(b) Upon Each of the dates and events referred to in clauses (i) through (viii) below in this Section 2(b) is referred to herein as a "TERMINATION EVENT". As used herein, "FORBEARANCE PERIOD" means the period beginning on the date hereof and ending on the earliest to occur of (x) a Termination EventEvent listed in clause (i), (v), or (vii) below in this Section 2(b) (it being understood that no notice is required in order for the Forbearance Period to terminate immediately and automatically upon the occurrence of any Termination Event listed in clause (i), (v), or (vii) below in this Section 2(b)), or (y) the date three (3) business days after any Class A Certificateholder (or such Class A Certificateholder's counsel) gives notice to Atlas that a Termination Event listed in clause (ii), (iii), (iv), (vi) or (viii) of this Section 2(b) has occurred and that, as a result thereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Period shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveend. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Termination Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).are as follows:
Appears in 2 contracts
Samples: Forbearance Agreement (Atlas Air Worldwide Holdings Inc), Forbearance Agreement (Atlas Air Inc)
Forbearance. (a) The Participant Lenders agree that until the expiration Holder shall not be deemed to have waived any of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related Holder’s rights or remedies under the Credit Agreementsthis Note unless such waiver is express and in a writing signed by Hxxxxx, Loan Documents and no delay or otherwiseomission by Hxxxxx in exercising, against the Borrower and the Subsidiary Guarantors solely or failure by Holder on any one or more occasions to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsexercise, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of Holder’s rights hereunder or under the other Loan Documents during the continuance of any Default Documents, or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent at law or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawequity, including, without limitation, their respective rights Holder’s right, after any Event of Default, to declare the entire indebtedness evidenced hereby immediately due and payable, shall be construed as a novation of this Note or shall operate as a waiver or prevent the subsequent exercise of any or all of such rights. Acceptance by Hxxxxx of any portion or all of any sum payable hereunder whether before, on or after the due date of such payment, shall not be a waiver of Holder’s right either to require prompt payment when due of all other sums payable hereunder or to exercise any of Holder’s rights, powers and remedies in connection hereunder or under the other Loan Documents. A waiver of any right on one occasion shall not be construed as a waiver of Hxxxxx’s right to insist thereafter upon strict compliance with the terms hereof without previous notice of such intention being given to Borrower. No exercise of any right by Holder shall constitute or be deemed to constitute an election of remedies by Hxxxxx precluding the subsequent exercise by Hxxxxx of any or all of the Defaults rights, powers and Events remedies available to it hereunder, under any of Defaultthe other Loan Documents, includingor at law or in equity. Borrower expressly waives, without limitationto the extent permitted by law, the Specified Defaults.
(c) For the avoidance benefit of doubtany statute or rule of law or equity now provided, nothing herein limits the right of the Administrative Agent or the Lenderswhich may hereafter be provided, including during the Forbearance Periodwhich would produce a result contrary to, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of in conflict with, the foregoing, the . Borrower consents to any and the Subsidiary Guarantors acknowledge all renewals and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary extensions in the Credit Agreements, time of payment hereof without in any way affecting the Administrative Agent shall not be required to act if directed against the liability of Borrower or the Subsidiary Guarantors if such action is contrary any person liable or to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies become liable with respect to any indebtedness evidenced hereby. No extension of the Specified Defaults shall not constitute a waiver time for the payment of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders this Note or any installment due hereunder, made by agreement with any person now or may hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability of Borrower under this Note, either in the future have under any whole or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)part, unless Hxxxxx agrees otherwise in writing.
Appears in 2 contracts
Samples: Promissory Note (Sanfilippo John B & Son Inc), Promissory Note (Sanfilippo John B & Son Inc)
Forbearance. (a) The Participant Lenders Effective as of the Third Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Third Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Third Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Third Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Third Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) November 1, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Third Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Third Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Third Amended Forbearance Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which Xxxxx Xxxxx Xxxxxx that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Third Amended Forbearance Agreement) under the DDJ Third Amended Forbearance Agreement or any amendment or modification to the DDJ Third Amended Forbearance Agreement; (D) termination of the DDJ Third Amended Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Third Amended Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the Xxxxxx Engagement Letter or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay Xxxxxx’x fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
the Xxxxxx Engagement Letter; (eG) The Borrower and the Subsidiary Guarantors acknowledge and agree occurrence of any Event of Default that is not a Specified Existing Default; (H) the agreement failure of the Participant Lenders hereunder Company to forbear from exercising their default-related remedies comply with respect any term, condition, covenant or agreement set forth in this Third Amended Forbearance Agreement; (I) the failure of any representation or warranty made by the Company under this Third Amended Forbearance Agreement to the Specified Defaults shall not constitute a waiver of such Specified Defaults be true and that the Lenders expressly reserve correct in all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all material respects as of the Loan Documents and/or applicable law in connection with all Defaults and Events date when made; (J) the commencement by or against the Company or any of the Subsidiaries of a case under title 11 of the United States Code; or (K) the commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or the Subsidiaries. Any Forbearance Default shall constitute an immediate Event of Default (including without limitation under the Specified Defaults)Indenture.
Appears in 2 contracts
Samples: Forbearance Agreement, Forbearance Agreement (Wornick CO)
Forbearance. (a) The Participant Lenders agree that Following the later of (x) the Agreement Effective Date or (y) the date and time upon which CEC may no longer terminate this Agreement pursuant to Section 11(c), until the expiration termination of the this Agreement (a “Forbearance PeriodTermination Event”), the Participant Lenders will temporarily each Consenting Second Lien Creditor agrees to forbear (subject to the terms hereof) from the exercise of their exercising its default-related rights and remedies (as well as any setoff rights and remedies) under the Credit Agreements, Loan Documents Second Lien Indentures or otherwiseapplicable law, against the Borrower Company and the Subsidiary Guarantors solely CEC and, with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower each, their property and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders interests in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawproperty.
(b) Upon the occurrence of a Forbearance Termination Event, the agreement of the Participant Lenders Consenting Second Lien Creditors hereunder to forbear from exercising their default-related rights and remedies (i) under the Second Lien Indentures and (ii) in respect of the Forbearance Defaults, shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower Caesars Parties hereby waive (to the extent permitted by applicable law).
(c) The Caesars Parties agree that, upon the occurrence of, and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed after the occurrence of, a Forbearance Termination Event, the Consenting Second Lien Creditors, the Trustees or the Collateral Agent, as applicable, may proceed, subject to the terms of the Second Lien Indentures, and applicable law, to exercise any and or all of their respective rights and remedies under any or all of the Loan Documents and/or Second Lien Indentures, applicable law, including, without limitation, their respective rights and remedies and/or in connection with any or all of the Defaults and Events of Defaultequity, including, without limitation, the Specified rights and remedies on account of the Forbearance Defaults, all of which rights and remedies are fully reserved.
(cd) The Caesars Parties agree that, prior to the termination of this Agreement with respect to any particular Consenting Second Lien Creditor, the Caesars Parties shall not commence any litigation or interpose or join in any claim arising from or in any way related to the Second Lien Indentures, the Second Xxxx Xxxx Claims, the Company, CEC, CAC, or any of their respective Affiliates against any such Consenting Second Lien Creditor. The Consenting Second Lien Creditors and the Second Lien Committee agree that, prior to the termination of this Agreement with respect to any particular Caesars Party, the Consenting Second Lien Creditors and the Second Lien Committee shall not commence any litigation or interpose or join in any claim arising from or in any way relating to the Second Lien Indentures against any such Caesars Party.
(e) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingnotwithstanding anything herein, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of forbearance set forth in this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Section 3 shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(ei) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies constitute a waiver with respect to any defaults or any Events of Defaults as defined under the Specified Defaults shall Second Lien Indentures, (ii) prevent any Consenting Second Lien Creditor or Second Lien Committee Member from enforcing its rights with respect to any non-Caesars Parties under any documents relating to the Second Lien Indentures, including, but not constitute limited to and for the avoidance of doubt, any intercreditor documents, and (iii) bar any Consenting Second Lien Creditor or Second Lien Committee Member from filing a waiver proof of claim or taking action to establish the amount of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Claim.
Appears in 2 contracts
Samples: Restructuring Support, Forbearance, and Settlement Agreement (Caesars Acquisition Co), Restructuring Support, Forbearance, and Settlement Agreement (CAESARS ENTERTAINMENT Corp)
Forbearance. (a) The Participant Lenders agree that until During the expiration of the Forbearance Period, the Participant Lenders will Short Term Extension Period Buyer hereby agrees to temporarily forbear (subject to the terms hereof) from the exercise of their exercising any default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Repurchase Agreement solely to the extent the availability of such remedies arises exclusively arise from any Event of Default in existence (whether or not declared) prior to the Specified Defaultsexecution of this Extension Agreement; provided that the Borrower and the Subsidiary Guarantors foregoing shall comply during the Forbearance Period with all provisions, limitations, restrictions not be deemed to limit Buyer’s rights or prohibitions that would otherwise be effective remedies against Seller or applicable under any of the Loan Documents during the continuance of Guarantor arising from any Default or Event of DefaultDefault occurring after the execution of this Extension Agreement or for any breach by Seller or Guarantor under this Extension Agreement; provided further provided, further, that the agreement of the Participant Lenders Buyer temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Buyer in connection with any Act of Insolvency against Seller or Guarantor or other proceeding commenced under any bankruptcy bankruptcy, insolvency or insolvency similar law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event; provided, further, that the agreement of Buyer temporarily to forebear shall not apply to nor preclude any remedy available to Buyer (i) if an Act of Insolvency or other proceeding under any bankruptcy, insolvency or similar law has occurred with respect to any borrower under the Participant Lenders Senior Loan, Senior Mezzanine Loan or Junior Mezzanine Loan or (ii) with respect to any action necessary or advisable in Buyer’s sole determination to avoid or otherwise address an actual or potential material adverse effect on the value of the real estate assets owned by the subsidiaries of the Senior Mezzanine Borrower. Upon the occurrence of the Termination Date, Buyer’s agreement hereunder to forbear from exercising their such default-related remedies shall immediately terminate without the requirement of any further demand, presentment, protest or notice of any kind, all of which Seller hereby waives to the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or fullest extent permitted by applicable law, including, without limitation, their respective rights . Seller acknowledges and agrees that Buyer’s agreement hereunder to forbear from exercising its default-related remedies in connection with respect to the specified Events of Default shall not constitute a waiver of any or all of the Defaults and such Events of Default, including, without limitation, the Specified Defaults.
(c) . For the avoidance of doubt, nothing herein limits the right rights of the Administrative Agent or the LendersBuyer, including during the Forbearance Period, Short Term Extension Period to take any action to preserve or exercise rights or remedies against parties other than the Borrower Seller and the Subsidiary Guarantors Guarantor ("“Third Party Rights"”). For purposes of the foregoing, the Borrower Seller acknowledges and the Subsidiary Guarantors acknowledge and agree agrees that execution and delivery of this Extension Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersBuyer.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 2 contracts
Samples: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration In consideration of the Forbearance Period, execution and delivery by the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise Soupman Entities of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower this Agreement and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any performance of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all Soupman Entities of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies obligations set forth in connection with any or all of the Defaults and Events of Default, this Agreement including, without limitation, the Specified execution, delivery and performance of the agreements and instruments contemplated hereby, Lender agrees that so long as no Forbearance Default (as hereinafter defined) shall have occurred and be continuing, during the Forbearance Period (as hereinafter defined) Lender hereby agrees to forbear from exercising and enforcing against the Soupman Entities its rights, powers and remedies under the Loans and the XXXX Entities Guaranty by reason of the Existing Defaults; provided, however, that upon the occurrence of a Forbearance Default, Lender may exercise all of her rights and remedies with respect to the Existing Defaults and the Forbearance Default.
(b) On or after the Forbearance Termination Date (as hereinafter defined), Lender may (in her discretion) exercise all rights and remedies under the Loans and the XXXX Entities Guaranty which are the subject of the foregoing forbearance. Nothing in this Agreement shall be construed to be a waiver or release by the Lender of, or acquiescence in, the Existing Defaults, and the Existing Defaults shall continue in existence, subject only to the Lender’s agreement, as set forth herein, not to enforce her remedies against the Soupman Entities for the period of time specified in this Agreement, subject to the conditions set forth herein. The execution, delivery and performance of this Agreement shall not (i) constitute an extension, modification, renewal, release, discharge, satisfaction or waiver of any term or provision of the Loans or any guaranty thereof, (ii) except as expressly set forth herein, extend the terms of the Loans or the due date of any of the obligations under the Loans or any guaranty thereof, (iii) give rise to any obligation on the part of Lender to extend, modify, or waive any aspect of the Loans or any guaranty thereof, or (iv) give rise to any defenses or counterclaims to Lender’s right to compel payment of the Loans or any guaranty thereof, or otherwise enforce the agreements evidencing the Loans and the security for the Loans or any guaranty thereof. Subject to the forbearance herein specified during the Forbearance Period, Lender hereby expressly reserves all of her rights and remedies under the Loans and any guaranty thereof and under applicable law with respect to the Existing Defaults. From and after the Forbearance Termination Date, the Lender shall be entitled to enforce the Loans or any guaranty thereof in accordance with the respective terms of the Loans or any guaranty thereof.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).,
Appears in 1 contract
Forbearance. The Company and Xxxxx acknowledge the existence of the Specified Defaults, including the failure of Facility Substantial Completion and Final Completion to be achieved. Subject to the terms and conditions set forth herein, throughout the period commencing on the date of this Agreement and ending on the applicable date set forth in the first sentence of Section 6 (the “Forbearance Period”), the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Lender) hereby agree to forbear from exercising any and all available default rights and remedies under the Agreement, the Notes. the Account and Security Agreement, the deeds of trust creating the Liens described in Article XI of the Account and Security Agreement, the Class B Investors Pledge Agreement and the Special Interest Investors Pledge Agreement and at applicable law as the result of the occurrence and continuance of the Specified Defaults. The Company and Xxxxx acknowledge and agree that the foregoing agreement to forbear exercising such default rights and remedies throughout the Forbearance Period shall not constitute a waiver of the Specified Defaults or a waiver of any other Credit Agreement Event of Default or Credit Agreement Default that is not waived by Section 3 of this Forbearance Agreement, and that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent expressly reserve all such default rights and remedies. The Company and Xxxxx further acknowledge and agree that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent may exercise any and all such default rights and remedies at any time following the earliest to occur of (a) The Participant Lenders agree that until the expiration of the Forbearance Period, (b) the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply occurrence during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any additional Credit Agreement Default or Credit Agreement Event of Default; provided further that the agreement , other than those potential Credit Agreement Defaults or Credit Agreement Events of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Default expressly waived in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Section 3 of adequate protection or relief from any stay imposed under such law.
this Forbearance Agreement (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, any default under this Forbearance Agreement), (c) any of MLE, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLP”), UTC, the Company, Xxxxx or any of their respective rights and remedies in connection with Affiliates takes any or all of action against the Defaults and Events of DefaultFacility, any other collateral for the Advances (including, without limitation, the Specified Defaults.
(c) For additional collateral described in Article XI of the avoidance Account and Security Agreement), the Company or Xxxxx or any of doubtits Affiliates which the Administrative Lender believes would materially adversely affect the interests of the Lenders, nothing herein limits the right of Administrative Lender, the Administrative Agent or the LendersCollateral Agent, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary aggregate balance in the Credit AgreementsSecurity Accounts under the Account and Security Agreement being less than $175,000 at any time from February 1 through February 24, the Administrative Agent shall not be required to act if directed against the Borrower 2011 or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
less than $250,000 at any time thereafter (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement any of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute events described in clause (a), (b), (c) or (d) a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults“Forbearance Termination Event”).
Appears in 1 contract
Samples: Amendment, Consent and Forbearance Agreement (Raser Technologies Inc)
Forbearance. Foothill and Borrower hereby acknowledge that certain Events of Default previously disclosed to Foothill by Borrower (aincluding without limitation those certain Events of Default acknowledged and disclosed Foothill by Borrower in those certain letters from Borrower to Foothill, dated as of March 3, 1998 and May 8, 1998) The Participant Lenders agree that until have occurred and are continuing under the expiration Loan Agreement (the "Current Defaults"). Foothill hereby agrees to forebear from taking any action or exercising any of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related its remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Agreement with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply Current Defaults during the Forbearance Period with all provisionsperiod from October 1, limitations1998, restrictions or prohibitions through and including October 31, 1998; provided, however, that would otherwise be effective or applicable under any of such forbearance shall apply only to the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear Current Defaults, shall not apply to nor preclude any remedy available to other Event of Default continuing as of the Administrative Agent Amendment Date, or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Event of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault that may occur after the Amendment Date. Further, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults forbearance shall not constitute a waiver by Foothill of any of its rights or remedies under the Loan Agreement, but shall only constitute a limited forbearance. Furthermore, nothing contained in this letter shall diminish, prejudice or waive any of Foothill's rights or remedies under the Loan Agreement or applicable law, and Foothill hereby reserves all such rights and remedies. Anything contained in the foregoing to the contrary notwithstanding, Foothill's continued forbearance with respect to the Current Defaults shall be contingent on Borrower's successful consummation of the sale of certain of Borrower's radio stations to Catholic Radio Network, LLC ("CRN") pursuant to the transactions contemplated in the proxy statement with respect to the sale of such Specified Defaults and that radio stations to CRN (the Lenders expressly reserve all rights and remedies that "Proxy"), in accordance with the Administrative Agent and approvals obtained from the Lenders now or may in holders of Borrower's Stock for such sale requested from the future have under any or all of the Loan Documents and/or applicable law holders in connection with all Defaults the Proxy, on or before October 31, 1998, and Events Borrower's failure to achieve the foregoing on or before the date set forth above shall terminate Foothill's agreement to the forgoing forbearance from and after the date of Default (including without limitation the Specified Defaults)such failure.
Appears in 1 contract
Samples: Loan and Security Agreement (Childrens Broadcasting Corp)
Forbearance. (a) The Participant Lenders agree that until the expiration of During the Forbearance PeriodPeriod (as defined below), Lender will not make demand for payment under the Participant Lenders will temporarily forbear (subject to the terms hereof) from the Restated Revolving Note and/or Restated Term Note, or exercise any of their default-related its rights or remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
Designated Defaults (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"as defined below). For purposes of this Agreement, "Forbearance Period" means the foregoingperiod commencing on the date hereof and ending on the earlier of: (a) August 31, 2004; (b) the Borrower occurrence of a Default hereunder; (c) the termination of the forbearance period pursuant to that certain Forbearance Agreement by and among Continental Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the Subsidiary Guarantors acknowledge "Global Forbearance Agreement"); and/or (d) either the Trustee under, or holders of 25% or more of the Series A and agree Series B Notes issued by Continental Global and administered by Norwest Bank Minnesota, Trustee under, that execution certain Indenture, dated as of April 1, 1997 (the "Indenture"), have declared the Series A and delivery of this Agreement shall constitute Series B Notes and/or any Liquidated Damages (as defined in the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting Indenture) to be due and payable; provided, however, that Lender's present willingness to so forbear and to forgo the exercise of any such Third Party Rights of Lender's rights, remedies, powers and/or privileges under the Administrative Agent Credit Documents shall only be construed as a limited, one-time forbearance. The Borrowers acknowledge and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees agree that, notwithstanding anything the foregoing: (i) except as set forth herein, Lender reserves the right to the contrary in enforce each and every term of the Credit Agreements, Documents; (ii) Lender is under no duty or obligation of any kind or any nature to grant the Administrative Agent Borrowers any additional period of forbearance beyond the Forbearance Period; (iii) Lender's actions in entering into this Agreement shall not be required construed as a waiver or relinquishment of, or estoppel to act if directed against the Borrower assert, any of Lender's rights or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement remedies under any of the Participant Lenders hereunder Credit Documents, applicable law or in equity; and (iv) Lender's actions in entering into this Agreement are without prejudice to forbear from exercising their default-related Lender's right to pursue any and all remedies with respect under the Credit Documents, pursuant to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now applicable law, or may in equity available to it in the future have under any sole discretion upon the termination (whether upon expiration thereof, upon acceleration, or all otherwise) of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Forbearance Period.
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Subject to the terms hereof) terms, conditions and understandings contained in this Agreement, Lender hereby agrees to refrain and forbear from the exercise exercising and enforcing any of their default-related its remedies under the Credit AgreementsDebenture, the Loan Documents or otherwiseunder applicable laws, against the Borrower and the Subsidiary Guarantors solely with respect to the extent Debenture Default, until September 18, 2014 (the availability of such remedies arises exclusively from “Forbearance”). In addition, Lender has agreed to forgive Twenty-Five Thousand Dollars ($25,000) currently owing under the Specified Defaults; provided that Debenture, to extend the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any original maturity date of the Loan Documents during Debenture by six months, and to waive its rights to accelerate the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Debenture Balance and to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders demand immediate payment in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawfull.
(b) Upon a Termination EventTo induce Lender to enter into this Agreement, Borrower has agreed to enter into that certain Exchange Agreement of even date herewith substantially in the agreement form attached hereto as Exhibit A (the “Exchange Agreement”); wherein, Borrower and Lender will exchange the Debenture for that certain Secured Convertible Promissory Note of even date herewith and substantially in the form attached hereto as Exhibit B (the “Note”). The Purchase Agreement and each of the Participant Lenders hereunder to forbear from exercising their default-related remedies other Loan Documents shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower remain in full force and the Subsidiary Guarantors hereby waiveeffect. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or Note shall be secured by all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all assets of the Defaults and Events Borrower according to the terms of Default, including, without limitation, that certain Security Agreement of even date herewith substantially in the Specified Defaultsform attached hereto as Exhibit C (the “Security Agreement”).
(c) For Together with its execution of this Agreement, Borrower shall execute a Judgment by Confession substantially in the avoidance of doubtform attached hereto as Exhibit D (the “Confession”), nothing herein limits the right of the Administrative Agent or the Lenderswhich, including during the Forbearance Period, in addition to take any action to preserve or exercise other rights or remedies against parties other than Lender may have under this Agreement, the Borrower and Loan Documents or applicable law, Lender may, in its sole discretion, cause to be entered into a court of competent jurisdiction upon Borrower’s default of any provision set forth in this Agreement, the Subsidiary Guarantors ("Third Party Rights"). For purposes Note, or any of the foregoing, other Loan Documents. The Confession shall provide for a judgment against Borrower equal to the Borrower and Judgment Amount (as defined in the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersConfession).
(d) Execution Borrower understands that the Forbearance shall terminate immediately upon the occurrence of any material breach of this Agreement constitutes a direction by or upon the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary occurrence of any Event of Default (as defined in the Credit AgreementsNote) after the date hereof and that upon the earlier of the termination of the Forbearance, the Administrative Agent shall not be required to act if directed against the Borrower Borrower’s breach of any term or provision in this Agreement, or the Subsidiary Guarantors if such action is contrary occurrence of any Event of Default, Lender may, in Lender’s sole and absolute discretion, pursue all remedies available to it under the terms of this Agreement, the Note, the other Loan Documents, or applicable law.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Forbearance Agreement (Global Health Ventures Inc.)
Forbearance. (a) The Participant Lenders agree that until In reliance upon the expiration representations, warranties and covenants of the Forbearance PeriodBorrower contained in this Agreement, the Participant Lenders will temporarily forbear (and subject to the terms hereof) and conditions of this Agreement, Agent and Lenders agree to forbear, until the Forbearance Termination Date, from the exercise of exercising their default-related rights and remedies under the Credit Agreements, Loan Documents Financing Agreements or otherwise, against the Borrower and the Subsidiary Guarantors solely applicable law due to the extent the availability occurrence of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree agrees that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawObligations shall, includingif not sooner paid in accordance with the Financing Agreements, without limitation, their respective rights be absolutely and remedies unconditionally due and payable in connection with any or all of full in cash by the Defaults Borrower to Agent and Events of Default, including, without limitation, Lenders on the Specified DefaultsForbearance Termination Date.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during Upon the Forbearance PeriodTermination Date, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Agent and Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver automatically and without further action terminate and be of no force and effect, it being understood and agreed that the effect of such Specified Defaults termination will be to permit Agent and that the Lenders expressly reserve to immediately exercise, without any further notice or forbearance of any kind, all of their rights and remedies that under the Administrative Agent Financing Agreements, applicable law or otherwise with respect to the Specified Default or any other Event of Default which shall exist or shall have occurred and the Lenders now or may in the future have under any or all be continuing at such time.
(d) No termination of the Loan Documents and/or applicable law Financing Agreements shall relieve or discharge Borrower of its duties, covenants and obligations under the Financing Agreements until all Obligations have been indefeasibly paid and satisfied in connection with all Defaults full in immediately available funds on terms and Events conditions acceptable to Agent. Borrower hereby expressly waives any right to receive notification under Section 9-611 of Default (including without limitation the Specified Defaults)UCC or otherwise of any disposition of any Collateral by Agent, any Lender or their designees, and waives any rights under Sections 9-620(e) and 9-623 of the UCC.
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until Subordinated Lender agrees not to ask, demand, xxx for or take or receive from the expiration [Issuer][Guarantor] in cash or other property or by setoff, purchase or redemption (including, without limitation, from or by way of collateral), payment of all or any part of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Subordinated Obligations and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced involving the Borrower or the [Issuer][Guarantor] under any bankruptcy Federal or insolvency lawstate bankruptcy, including without limitationinsolvency, receivership or similar law (i) the Controlling Agent is irrevocably authorized and empowered (in its own name or in the name of the Subordinated Lender or otherwise), but shall have no obligation, to demand, xxx for, collect and receive every payment or distribution referred to in the preceding sentence and give acquittance therefor and to file claims and proofs of claim after the Subordinated Lender has failed to make claims or proofs of claims in form and substance reasonably satisfactory to the Controlling Agent prior to the date which is 30 days before the relevant bar date, as the Controlling Agent may deem necessary or advisable for the exercise or enforcement of any relief of the rights or interests of the Lenders and (ii) the Subordinated Lender shall duly and promptly take such action as the Controlling Agent may request to (A) collect amounts in respect of adequate protection the Subordinated Obligations for the account of the Lenders and to file appropriate claims or relief from proofs of claim in respect of the Subordinated Obligations, (B) execute and deliver to the Controlling Agent such irrevocable powers of attorney, assignments or other instruments as the Controlling Agent may request in order to enable the Controlling Agent to enforce any stay imposed under such lawand all claims with respect to, and any security and other Liens securing payment of, the Subordinated Obligations and (C) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Obligations. A copy of these subordination provisions may be filed with any court as evidence of the Controlling Agent's power and authority hereunder.
(b) Upon a Termination EventWithout the prior written consent of the Controlling Agent, the agreement [Issuer][Guarantor] will not give, or permit to be given, and the Subordinated Lender will not receive, accept or demand, (i) any security of any nature whatsoever for any Subordinated Obligations on any property or assets, whether now existing or hereafter acquired, of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without [Issuer][Guarantor] or any Affiliate of the requirement [Issuer][Guarantor] (other than a Vencor Unrestricted Subsidiary) or (ii) any Guarantee (other than the Subordinated Guarantee), of any demandnature whatsoever, presentmentby the [Issuer][Guarantor] or any Affiliate of the [Issuer][Guarantor] (other than by a Vencor Unrestricted Subsidiary), protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified DefaultsSubordinated Obligations.
(c) For the avoidance of doubt, nothing herein limits The Subordinated Lender waives the right to compel that the Collateral or any other property of the Administrative Agent [Issuer][Guarantor] or the Lendersproperty of any Guarantor or any other Person be applied in any particular order to discharge the Senior Debt. The Subordinated Lender expressly waives the right to require the Lenders to proceed against the [Issuer][Guarantor], including during the Forbearance PeriodCollateral or any Guarantor or any other Person, or to take pursue any action other remedy in any Lender's power which the Subordinated Lender cannot pursue and which would lighten the Subordinated Lender's burden, notwithstanding that the failure of any Lender to preserve do so may thereby prejudice the Subordinated Lender. The Subordinated Lender agrees that it shall not be discharged, exonerated or exercise rights have its obligations hereunder to the Lenders reduced by any Lender's delay in proceeding against or remedies enforcing any remedy against parties the [Issuer][Guarantor], the Collateral or any Guarantor or any other than Person; by any Lender releasing the Borrower and [Issuer][Guarantor], the Subsidiary Guarantors ("Third Party Rights"). For purposes Collateral or any Guarantor or any other Person from all or any part of the foregoingSenior Debt; or by the discharge of the [Issuer][Guarantor], the Borrower and Collateral or any Guarantor or any other Person by operation of law or otherwise, with or without the Subsidiary Guarantors acknowledge and agree that execution and delivery intervention or omission of this Agreement shall constitute a Lender. Any Lender's vote to accept or reject any plan of reorganization relating to the making [Issuer][Guarantor], the Collateral, or any Guarantor or any other Person, or any Lender's receipt on account of all or part of the Senior Debt of any necessary demand cash, property, or securities distributed in any bankruptcy, reorganization, or insolvency case, shall not discharge, exonerate, or reduce the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights obligations of the Administrative Agent and Subordinated Lender hereunder to the Lenders.
(d) Execution The Subordinated Lender waives all rights and defenses arising out of this Agreement constitutes a direction an election of remedies by any Lenders, even though that election of remedies, including without limitation any nonjudicial foreclosure with respect to security for the Participant Lenders that Senior Debt, has impaired the Administrative Agent act in accordance with its termsvalue of the Subordinated Lender's rights of subrogation, reimbursement, or contribution against the [Issuer][Guarantor] or any Guarantor or any other Person. Each Participant The Subordinated Lender agrees that, notwithstanding anything expressly waives any rights or defenses it may have by reason of protection afforded to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower [Issuer][Guarantor] or the Subsidiary Guarantors if such action is contrary any Guarantor or any other Person with respect to the terms Senior Debt pursuant to any anti- deficiency laws or other laws of this Agreementsimilar import which limit or discharge the principal debtor's indebtedness upon judicial or nonjudicial foreclosure of real property or personal property Collateral for the Senior Debt.
(e) The Borrower Subordinated Lender agrees that, without the necessity of any reservation of rights against it, and without notice to or further assent by it, any demand for payment of any Senior Debt made by a Lender may be rescinded in whole or in part by the Lender, and any Senior Debt may be continued, and the Subsidiary Guarantors acknowledge and agree that Senior Debt, or the agreement liability of the Participant Lenders hereunder to forbear from exercising their default-related remedies Borrower, the [Issuer][Guarantor] or any other Guarantor or any other party upon or for any part thereof, or any Collateral or Guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, by the Specified Defaults shall not constitute a waiver of such Specified Defaults Lenders, in each case without notice to or further assent by the Subordinated Lender, which will remain bound under these subordination provisions and that without impairing, abridging, releasing or affecting the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)subordination provided for herein.
Appears in 1 contract
Forbearance. (a) The Participant Administrative Agent and each Lender party hereto (each on behalf of itself and any of its Affiliates party to any Cash Management Agreement), which Lenders constitute at least the Majority Lenders, hereby agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily to forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions(as defined below) from exercising their rights and remedies under the Loan Documents, limitations, restrictions the Cash Management Agreements and applicable law arising solely as a result of the occurrence or prohibitions that would otherwise be effective or applicable under continuance of any of the Loan Documents during Specified Defaults, including, the continuance of any Default or Event of Defaultright to exercise set-off rights; provided further provided, that the agreement of the Participant Lenders temporarily to forbear this Agreement (including this Section 2.1) shall not apply to nor preclude or bind any remedy available Lender or Affiliate of a Lender in its respective capacity as a Secured Swap Provider or require a Secured Swap Provider to forbear from any of its rights and 007870-0083-35345850 remedies in respect of a Secured Swap Agreement (whether pursuant to such agreement or applicable law), including any of its rights and remedies thereunder to declare an “Early Termination Date” or its right thereunder to set off any amounts owed thereunder against the Secured Obligations, in each case as a result of the occurrence of a Specified Default. Notwithstanding anything to the contrary in the Credit Agreement (including, without limitation, Section 3.04(c)(v) therein), each of the parties hereto acknowledge and agree that each Secured Swap Provider shall deliver the proceeds of any unwound Secured Swap Agreement received on and after the Effective Date through and including the Termination Date to the Administrative Agent in order to apply such proceeds to satisfy the Secured Obligations in accordance with Section 10.02(c) of the Credit Agreement.
(b) This forbearance shall apply only to the Specified Defaults and not to any other Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawEvents of Default, including without limitation, any other existing Defaults or Events of Default known or not known to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may or the Borrower or any other Loan Party at this time and any time thereafter proceed Defaults or Events of Default occurring after the date hereof. The Administrative Agent and the Lenders (each on behalf of itself and any of its Affiliates party to exercise any and Cash Management Agreement or any Secured Swap Agreement) reserve all of their respective rights to exercise rights and remedies under any or all of the Loan Documents and/or applicable lawDocuments, the Cash Management Agreements and, without limiting the proviso in Section 2.1(a), the Secured Swap Agreements upon the occurrence of any such other Default or Event of Default at any time, including, without limitation, their respective rights and remedies in connection with any before the expiry or all termination of the Defaults and Events Forbearance Period. During the Forbearance Period, no Secured Obligations shall bear a default rate of Default, including, without limitation, interest pursuant to Section 3.02(c) of the Credit Agreement to the extent attributable to the Specified Defaults.
(c) For As used herein, the avoidance of doubt, nothing herein limits term “Forbearance Period” means the right period commencing on the date hereof and continuing until the occurrence of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersTermination Date.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders In reliance upon the representations, warranties and covenants of the Loan Parties contained in this Forbearance, and subject to the terms and conditions of this Forbearance, the Administrative Agent and the other Secured Parties party hereto agree to forbear during the Forbearance Period from exercising their rights and remedies under the Credit Agreement and the Loan Documents or applicable law or otherwise in respect of or arising out of the Existing Defaults.
(b) Unless the Obligations (other than contingent indemnification obligations not yet accrued and payable) have been satisfied in full and the Outstanding Amount of the L/C Obligation related to each outstanding Letter of Credit shall constitute (and be deemed issued as) a Letter of Credit under, and as defined in, that until certain debtor-in-possession credit agreement contemplated in the Interim DIP Order or has been cash collateralized or, if satisfactory to the L/C Issuer in its sole discretion, a backstop letter of credit is in place, upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution other Secured Parties party hereto to forbear shall automatically and without further action terminate and be of this Agreement constitutes a direction by the Participant Lenders no force and effect, it being expressly agreed that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver effect of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that termination will be to permit the Administrative Agent and the Lenders now or may in other Secured Parties party hereto to exercise immediately all rights and remedies under the future have under any or Credit Agreement and the Loan Documents and applicable law, including, but not limited to accelerating all of the Obligations under the Credit Agreement and the Loan Documents and/or applicable law Documents, in connection with all Defaults and Events each case without any further notice to any Loan Party, passage of time or forbearance of any kind.
(c) Without limiting the foregoing, the Required Lenders hereby direct the Administrative Agent during the Forbearance Period not to: (i) deliver a notification of a Cash Dominion Event to any Loan Party pursuant to Section 2.05(b)(iii) of the Credit Agreement; (ii) deliver a notification to any Borrower denying any request on the conversion or continuation of any Eurocurrency Rate Loans, EURIBOR Loans or CDOR Loans or the conversion of any Loans in Alternative Currency to Loans denominated in Dollars; (iii) charge Default (including without limitation the Specified Defaults).Rate on any Loans or other Obligations; or
Appears in 1 contract
Samples: Forbearance Agreement (Avaya Inc)
Forbearance. (a) The Participant Lenders agree For purposes of this Agreement, the term “Forbearance Period” shall mean the period commencing on the Forbearance Effective Date (as hereinafter defined) and ending on that until date (the expiration “Forbearance Termination Date”) which is the earliest to occur of the Forbearance Periodfollowing: (1) July 15, 2018; (2) the Participant Lenders will temporarily forbear date on which any Obligor or any of their respective Subsidiaries initiates or has filed against it any bankruptcy, insolvency, assignment, foreclosure or similar proceeding under state, federal or foreign law; (subject 3) the date on which the forbearance of the Term Loan Agent and each Term Loan Lender pursuant to the terms hereof) from the exercise of their default-related remedies under the Credit AgreementsTerm Loan Forbearance Agreement shall terminate, Loan Documents expire or otherwise, against the Borrower and the Subsidiary Guarantors solely otherwise cease to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective for any reason; (4) the date on which any Obligor breaches or applicable under fails to comply with any of the Loan Documents during terms of this Agreement as determined by the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawLenders, including, without limitation, their respective rights and remedies in connection with (i) the failure by any Obligor to comply with, or all any breach or violation by any Obligor of, any of the agreements or covenants set forth herein, (ii) the failure of any representation or warranty of any Obligor set forth herein to be true and correct in all material respects or (iii) the date on which any Default or Event of Default other than the Specified Defaults and Events occurs; (5) the date on which the Term Loan Agent or any Term Loan Lender takes any action or initiates any action or proceeding to accelerate the obligations (including any Term Loan Obligations) or enforce any of Default, its rights or remedies under the Term Loan Agreement or any other Term Loan Document or any right or remedy with respect to any collateral (including the Term Loan Priority Collateral) in respect of the Term Loan Obligations; or (6) the date on which any person or entity (including the Term Loan Agent or any Term Loan Lender) initiates any action or proceeding (including, without limitation, the Specified Defaults.
(cinitiation of any advertisement for foreclosure under a power of sale in any deed of trust, mortgage, deed to secure debt, or similar instrument) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent to foreclose or the Lenders, including during the Forbearance Period, to take otherwise enforce any action to preserve or exercise rights or remedies against parties in connection with any lien, claim of lien, deed to secure debt, mortgage, security agreement or other than the Borrower and the Subsidiary Guarantors encumbrance ("Third Party Rights")including, without limitation, any judgment) on any assets or properties of any Obligor or any of their respective Subsidiaries. For purposes Each of the foregoing, Obligors hereby acknowledges and agrees that the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute has not established any course of dealing between the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults parties hereto and that the Lenders expressly reserve all rights and remedies that parties hereto do not contemplate, and, in entering into this Agreement, the Administrative Agent and the Lenders now or may in the future Obligors have under not relied upon, any or all potential extension of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Forbearance Period.
Appears in 1 contract
Forbearance. (a) The Participant So long as this Agreement is not terminated as provided in Section 7, Administrative Agent, Syndication Agent, Lender Counterparty and Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders they will temporarily forbear (subject to the terms hereof) from the not exercise of their default-related any rights or remedies under the Credit AgreementsTransaction Documents (other than the Western Guaranty) with respect to the Parent Bankruptcy, Loan Documents or otherwise, against the Borrower Existing and the Subsidiary Guarantors solely ISDA Defaults for a period beginning on the date first set forth above and ending on close of business October 31, 2008 (the “Effective Period”) provided, the Lender Counterparty reserves the right to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower terminate, and the Subsidiary Guarantors shall comply Company will agree to terminate, any or all of the Hedging Contracts with Lender Counterparty during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawEffective Period.
(b) Upon a Termination EventDuring the Effective Period, Lenders shall have no Commitment to fund any Loans under the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandCredit Agreement, presentmentexcept as set forth herein, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower Company shall not be required to make any regularly scheduled principal and interest payments due to the Subsidiary Guarantors agree that Lenders including any principal or interest payments due under the ISDA Master Agreement except the Company shall pay monthly, on the first Business day of each month, commencing July 1, 2008, an amount equal to 100% of Monthly Adjusted Net Cash Flow for the immediately preceding month to be applied by Administrative Agent and in its sole discretion against the Lenders Obligations in such order as Administrative Agent may at any time thereafter proceed to exercise any and all direct. “Monthly Adjusted Net Cash Flow” shall be calculated as provided under the definition of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawAdjusted Net Cash Flow except that it shall be computed on a monthly basis, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaultsnot a quarterly basis.
(c) For Since the avoidance of doubt, nothing herein limits the right occurrence of the Administrative Agent first of the Existing Defaults, in conformance with the Credit Agreement, and the ISDA Defaults, in conformance with the ISDA Master Agreement, the Obligations have accrued interest at the Post-Default Rate or the Lenders, including during “Default Rate,” as applicable under the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Credit Agreement and the Subsidiary Guarantors ("Third Party Rights")ISDA Master Agreement. For purposes of From and after the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery date of this Agreement shall constitute until the making Effective Date or its is otherwise terminated under the provisions of Section 7, interest on the Obligations including without limitation, (i) to the extent permitted by applicable Law, any necessary demand or accrued but unpaid interest payments on the giving of any necessary notice for purposes of preserving and/or permitting Obligations owed hereunder, and (ii) the exercise of any such Third Party Rights average daily balance of the Administrative Agent notional amount of xxxxxx and all other unpaid amounts under ISDA Master Agreement, shall bear interest at the LendersEffective Rate.
(d) Execution of Notwithstanding anything in this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything Section 4 to the contrary in contrary, during the Credit AgreementsEffective Period the Company is, the Administrative Agent and shall not be required remain, obligated to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary pay and account to Royalty Owner for all proceeds attributable to the terms of this AgreementORRI.
(e) The Borrower and Upon the Subsidiary Guarantors acknowledge and agree that the agreement termination of the Participant Effective Period, or under the provisions of Section 7, all sums due and owing under the Notes and Transaction Documents shall be due and payable in full without further notice, and Administrative Agent, Syndication Agent, Lender Counterparty and Lenders hereunder to forbear from exercising their default-related may exercise any and all remedies available with respect to the Specified Parent Bankruptcy, the Existing Defaults shall under the Transaction Documents and the ISDA Defaults under the ISDA Master Agreement, pursuant to applicable law, under equity, or otherwise.
(f) Administrative Agent, Syndication Agent, Lender Counterparty and Lenders make no commitment to, and currently do not constitute expect under any circumstances to, extend the duration of the Effective Period. Further, nothing in this Agreement constitutes a waiver of such Specified the Parent Bankruptcy, the Existing Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now ISDA Defaults, or may in the any other existing or future have under any Defaults or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)or a waiver of Administrative Agent’s, Syndication Agent’s, Lender Counterparty’s and Lenders’ right to insist upon compliance by all other relevant parties with each Transaction Document, except as specifically set forth herein.
Appears in 1 contract
Forbearance. Notwithstanding any provision of this Agreement or any other Loan Documents to the contrary, and regardless of the existence or occurrence of any circumstance or event that would otherwise constitute a default or Event of Default by Borrower, the Lender shall not be entitled to (a) The Participant Lenders agree that until the expiration of the Forbearance Periodtake any Lien Enforcement Action, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventexercise any other rights or remedies it may have under the Loan Documents, including, without limitation the agreement of Fund Pledge Agreement, including, but not limited to accelerating the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandLoan, presentment, protest or notice collecting payments of any kind, all of which appointing (or seeking the Borrower and appointment of) a receiver or exercising any other rights or remedies thereunder, or (c) commence, or join with any other creditor in commencing, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings with respect to the Subsidiary Guarantors hereby waive. The Borrower and Borrower, from the Subsidiary Guarantors agree that date hereof until the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all termination of the Loan Documents and/or applicable lawNMTC Compliance Period (the “Forbearance Termination Date”). “Lien Enforcement Action” shall mean (i) any action to foreclose on, take possession of, sell or otherwise realize (judicially or non-judicially) upon the CDE Interest, or any rights or privileges attendant thereto (including, without limitation, their respective by set- off), (ii) any action to assert ownership rights with respect to the CDE Interest, or any rights or privileges attendant thereto, (iii) any action (judicially or non-judicially) to dissolve or liquidate the Borrower, and/or (iv) the commencement of any legal proceedings to facilitate any of the actions described in clauses (i), (ii) or (iii) of this sentence above. The provisions of this Section shall be construed as, and shall operate as, a bar to any action, proceeding, or remedy (judicial or otherwise) that would violate the provisions of this Section. In the event that Xxxxxx shall threaten, initiate, or pursue any Lien Enforcement Action or other action, proceeding, or remedy in violation of the provisions of this Section, Xxxxxx agrees that damages would constitute an inadequate remedy to Borrower on account of such violation and that Borrower shall be entitled to seek and obtain injunctive relief prohibiting the same. On and after the Forbearance Termination Date to the extent permitted under the Loan Documents, the Lender shall be free, in its sole and absolute discretion, after an Event of Default to accelerate the payment in full of all of the Borrower’s obligations to it under the Loan Documents and to institute proceedings to enforce its rights and remedies in connection with any or all under the Loan Documents and/or as provided by applicable law. All of the Defaults Borrower’s obligations and Events of Default, liabilities to Lender hereunder (including, without limitation, the Specified Defaults.
(cBorrower’s payment obligations) For and any documents, instruments or agreements pursuant to which the avoidance of doubtBorrower may, nothing herein limits from time to time, grant to the right of Lender as collateral security for the Administrative Agent or Borrower’s obligations to the LendersLender, including during shall survive the Forbearance PeriodTermination Date. The provisions set forth above shall not prohibit or prevent Lender from giving notice of a default under the Loan Documents or from declaring an Event of Default under the Loan Documents, but shall only require Lender to take forbear from exercising any action to preserve or exercise rights or of its remedies against parties other than under the Borrower Loan Documents. The Equity Investor and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors Xxxxxxxx acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the Xxxxxx’s failure to exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults rights shall not constitute a waiver of any such Specified Defaults and that rights by Lender. Notwithstanding the Lenders expressly reserve all rights and remedies that foregoing, if at any time (i) the Administrative Agent and Borrower has voluntarily filed for bankruptcy, or (ii) the Lenders now or may in Borrower has been convicted of criminal theft and/or misappropriation of funds with respect to the future have under any or all proceeds of the Loan Documents and/or applicable law in connection with all Defaults or any funds received from the CDE which were required to be applied to the repayment of the Loans, and Events Borrower shall have failed to cure any such theft or misappropriation within thirty (30) days after receipt of written notice from Lender, then the provisions of this Section 6.3 shall not apply and the Lender may initiate a Lien Enforcement Action if an Event of Default (including without limitation the Specified Defaults)shall then exist.
Appears in 1 contract
Samples: Fund Loan Agreement
Forbearance. (a) Each Forbearing Lender (severally and not jointly) hereby agrees to forbear, and hxxxxx instructs the Administrative Agent and the Collateral Agent to forbear, and the Administrative Agent agrees to forbear, in each case, from exercising any of the Rights and Remedies with respect to any Specified Default during the Forbearance Period (the “Forbearance”). For the avoidance of doubt, during the Forbearance Period, each Forbearing Lxxxxx agrees that it (individually or collectively) will not deliver any notice, instruction or request to the Administrative Agent or the Collateral Agent directing the Administrative Agent or the Collateral Agent, as applicable, in each case, to exercise any of the Rights and Remedies against the Loan Parties with respect to any Specified Default and to take all actions necessary or reasonably desirable to prevent the Administrative Agent and the Collateral Agent from exercising any of the Rights and Remedies with respect to any Specified Default.
(b) The Participant Lenders Forbearance is limited in nature and is not intended, and shall not be deemed or construed (i) to constitute a waiver of any Specified Defaults or any other existing or future Defaults or Events of Default or compliance with any term or provision of the Loan Documents or applicable law or (ii) to establish a custom or course of dealing between the Loan Parties, on the one hand, and the Administrative Agent, the Collateral Agent and/or any Lender, on the other hand. The Parent and each of the Borrowers acknowledge and agree that until the agreement of the Administrative Agent and the Forbearing Lenders to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any Specified Default and that, except as expressly set forth in this Agreement, the Administrative Agent and the Lenders expressly reserve all rights and remedies that the Agents and the Lenders have under any or all of the Loan Documents and applicable law in connection with all Defaults or Events of Default.
(c) Upon the termination or expiration of the Forbearance Period: (i) the Forbearance and all agreements set forth in Section 3(a) of this Agreement shall terminate automatically and be of no further force or effect, the Participant Lenders will temporarily forbear and (ii) subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during and applicable law, the continuance Administrative Agent, the Collateral Agent and each Lender shall be free to proceed to enforce any or all of any Default or Event its rights and remedies set forth in the Credit Agreement, the other Loan Documents and applicable law. For the avoidance of Default; provided further doubt, the Parent and each of the Borrowers acknowledge and confirm that the agreement of the Participant Forbearing Lenders and the Administrative Agent temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent, the Collateral Agent or the Lenders in connection with any proceeding commenced voluntarily by the Loan Parties under any bankruptcy or insolvency law, including including, without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(bd) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors parties hereto agree that the Administrative Agent running of all statutes of limitation and the Lenders doctrine of laches applicable to all claims or causes of action that the Administrative Agent, the Collateral Agent or any Lender may at be entitled to take or bring in order to enforce its rights and remedies against any time thereafter proceed to exercise of the Parent, the Borrowers, any and all other Guarantor, any of their respective rights and remedies under Subsidiaries or any property or all assets of any of the Loan Documents and/or applicable foregoing in respect of the Specified Defaults are, to the fullest extent permitted by law, including, without limitation, their respective rights tolled and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including suspended during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(de) Execution of this Agreement constitutes a direction by the Participant Forbearing Lenders that the Administrative Agent and the Collateral Agent act or forbear from acting in accordance with its termsthe terms of this Agreement. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the The Administrative Agent and the Collateral Agent shall not, and shall not be required to to, act if directed against the Borrower or the Subsidiary Guarantors Loan Parties if such action is contrary to the terms of this Agreement.
(ef) The Borrower Parent and the Subsidiary Guarantors acknowledge and agree that the agreement each of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to Borrowers understand and accept the Specified Defaults shall not constitute a waiver temporary nature of such Specified Defaults the Forbearance provided hereby and that none of the Forbearing Lenders expressly reserve all rights and remedies that the Administrative Agent and have given any assurances that they will extend such Forbearance or provide waivers or amendments to the Lenders now Credit Agreement or may any other Loan Document other than those expressly provided for herein.
(g) Nothing in the future have under this Agreement constitutes a legal obligation to participate in any restructuring or all amendment of the Loan Documents and/or applicable law in connection with all Defaults Credit Agreement or to execute any related documents and Events of Default (including without limitation the Specified Defaults)no such legal obligation shall arise except pursuant to mutually agreeable executed definitive documentation.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Participant Lenders will temporarily forbear (subject Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the terms hereofSpecified Existing Defaults and any Anticipated Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) from during the Forbearance Period); provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults, Anticipated Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) August 15, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which Xxxxx Xxxxx Xxxxxx that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Forbearance Agreement) under the DDJ Forbearance Agreement or any amendment or modification to the DDJ Forbearance Agreement; (D) termination of the DDJ Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the Xxxxxx Engagement Letter (as defined below) or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay Xxxxxx’x fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of the Xxxxxx Engagement Letter (as defined below); (G) the occurrence of any Event of Default that is neither a Specified Existing Default, nor an Anticipated Default; (H) the failure of the Company to comply with any term, condition, covenant or agreement set forth in this Agreement.
; (eI) The Borrower the failure of any representation or warranty made by the Company under this Agreement to be true and the Subsidiary Guarantors acknowledge and agree that the agreement correct in all material respects as of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to date when made; (J) the Specified Defaults shall not constitute a waiver of such Specified Defaults and that commencement by or against the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now Company or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Subsidiaries of Default a case under title 11 of the United States Code; or (including without limitation K) the Specified Defaults)commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or the Subsidiaries.
Appears in 1 contract
Samples: Forbearance Agreement (Wornick CO)
Forbearance. (a) Each Company hereby acknowledges that the Designated Default has occurred on April 1, 2018 and is continuing which entitles the Creditor Parties to exercise their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law. No Creditor Party has waived, presently does not intend to waive and may never waive such Designated Default and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver. Each Company hereby acknowledges that Creditor Parties have the presently exercisable right to declare the Liabilities to be immediately due and payable under the terms of the Purchase Agreement and the Related Agreements.
(b) Subject to satisfaction of the conditions of effectiveness set forth in Section 8 of this Amendment Agreement, during the period (the “Forbearance Period”) commencing on the date hereof and ending on the earlier to occur of (a) June 30, 2018 and (b) the occurrence of any Forbearance Default (as defined in Section 3(d) of this Amendment Agreement), Creditor Parties will forbear from exercising their rights and remedies under the Purchase Agreement, the Related Agreements and applicable law solely in respect of the Designated Default. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever Creditor Parties’ rights to administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any other collateral to the Liabilities, in each case, in accordance with the terms of the Purchase Agreement and the Related Agreements. The Participant Lenders agree that until Creditor Parties may consider extending the expiration date of the Forbearance Period, but any such extension will be determined by the Creditor Parties in their sole and absolute discretion and, if provided at all, shall only be made on terms and conditions satisfactory to the Creditor Parties in their sole and absolute discretion. Among other factors which the Creditor Parties may consider in determining whether to extend the expiration date of the Forbearance Period are the Companies’ financial performance, the Companies’ compliance with the June 30, 2018 “Operating Margin” financial covenant under Section 8.23(a), the occurrence of no Events of Default (other than the Designated Default) and the Creditor Parties’ receipt of evidence satisfactory in all respects to the Creditor Parties demonstrating that satisfactory progress (as determined by the Creditor Parties in their sole and absolute discretion) has been made by the Companies in connection with their diligent and good faith efforts to refinance the Liabilities by June 30, 2018. No such extension, if provided at all, shall be effective unless in a writing executed by the Creditor Parties and the Companies, and acknowledged and agreed to by the Guarantors.
(c) Upon the termination of the Forbearance Period, the Participant Lenders will temporarily agreement of Creditor Parties to forbear (subject with respect to the terms hereof) from Designated Default shall automatically and without further action terminate and be of no further force and effect, it being expressly agreed that the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability effect of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise termination will be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply permit Creditor Parties to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under (i) exercise such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under immediately without any further notice, passage of time or all forbearance of any kind and (ii) charge the Default Interest Rate (as defined in Section 1.7 of the Loan Documents and/or applicable lawNote) retroactively to April 1, including2018, without limitation, their respective rights which such Default Interest Rate charges shall be due and remedies payable on the next Interest Payment Date (as defined in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"Note). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution The occurrence of this Agreement constitutes any Event of Default (other than the Designated Default) shall constitute a direction by Forbearance Default. As of the Participant Lenders that date hereof, neither the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to Companies nor the contrary in Creditor Parties have any actual knowledge of any Events of Default other than the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this AgreementDesignated Default.
(e) The Borrower and Subject only to Section 3(b) of this Amendment Agreement, Creditor Parties reserve the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder right, in their sole discretion, to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under exercise any or all of their rights and remedies under the Loan Documents and/or Purchase Agreement , the Related Agreements and applicable law in connection with all Defaults and Events as a result of any Event of Default (including without limitation other than the Specified DefaultsDesignated Default), and no Creditor Party has waived any of such rights or remedies, and nothing in this Amendment Agreement, and no delay on their part in exercising any such rights or remedies, should be construed as a waiver of any such rights or remedies.
Appears in 1 contract
Samples: Forbearance and Third Amendment Agreement (usell.com, Inc.)
Forbearance. (a) Upon the satisfaction of the conditions precedent set forth in Section 3 of this Agreement, each Forbearing Holder hereby agrees that during the Forbearance Period it will not, directly or indirectly, (x) take any Remedial Action with respect to the Notes in connection with the Payment Default, (y) take any Remedial Action with respect to the purported breaches set forth in the letter dated May 21, 2010 of Xxxxx X. Xxxxx to Xxxxxxx Xxxxxxxx (the “Canadian Facility Matters”), it being understood that neither the Issuer nor the Guarantors admit to the validity of such breaches, or (z) sell, pledge, hypothecate or otherwise transfer any Notes, except to a purchaser or other entity who agrees in writing (delivered to Sidley Austin LLP) to be bound by all of the terms of this Agreement with respect to the relevant Notes being sold, pledged, hypothecated or transferred to such purchaser or entity. The Participant Lenders agree that until foregoing limited forbearance shall not be construed to impair the expiration ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of Default other than the Payment Default and the Canadian Facility Matters. Without prejudicing the rights and remedies of the Forbearing Holders in respect of the Canadian Facility Matters (except as expressly limited in this Agreement), in no event, during the Forbearance Period, shall the Participant Lenders will temporarily forbear (subject to Forbearing Holders assert that a Forbearance Termination Event has occurred because the terms hereof) from the exercise Canadian Facility Matters constitute a Default or an Event of their default-related remedies Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawIndenture.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuer and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder Indenture and the Notes without giving effect to forbear from exercising their default-related remedies the forbearance set forth herein.
(c) The Forbearing Holders hereby agree to execute and deliver a letter, promptly after the Effective Date to the Trustee in the form attached hereto as Schedule A (the “Letter”), which letter shall immediately terminate without not be withdrawn or rescinded by the requirement Forbearing Holders until the occurrence of any demandForbearance Termination Event.
(d) Except for the forbearance to the extent expressly set forth above in subsection 2(a), presentmenteach Forbearing Holder reserves each and every right and remedy it may have under the Notes, protest or notice of the Indenture, the Collateral Documents, any kind, all of which agreement relating thereto and under applicable law with respect to the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Payment Default, including, without limitation, the Specified Defaults.
(c) For right to continue to charge and collect interest at the avoidance of doubt, nothing herein limits the right default rate pursuant to Section 1 of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Notes. The Issuer and the Subsidiary Guarantors ("Third Party Rights"). For purposes each of the foregoing, the Borrower and the Subsidiary Guarantors hereby acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights default interest pursuant to Section 1 of the Administrative Agent Notes shall accrue from and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsafter July 1, 2010. Each Participant Lender agrees that, notwithstanding anything Nothing herein shall be deemed to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified Defaults and that any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Lenders Payment Default), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Collateral Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Forbearance. So long as (i) the Securities Purchase Agreement remains in effect and (ii) the Company has not become a debtor under the Bankruptcy Code, the Consenting Noteholder acknowledges and agrees that it shall forbear for sixty (60) days following the execution hereof, from exercising (a) The Participant Lenders agree that until the expiration right to receive principal of, and interest on, any security held by the Consenting Noteholder, (b) the filing of a notice of default, the taking of any action to accelerate or otherwise collect on any security held by the Consenting Noteholder, (c) pursuing any rights or remedies (including acceleration of amounts due thereunder) available under any security held by the Consenting Noteholder and (d) the commencement of litigation or proceedings (including arbitration) of any kind or nature against the Company or any of its respective subsidiaries, arising as the result of, or in connection with, any current failure to pay the principal of, or interest on any security held by the Consenting Noteholder, or a default under any security held by the Consenting Noteholder or in respect of any other rights or remedies of the Forbearance PeriodConsenting Noteholder under any security held by the Consenting Noteholder or the indenture that governs any security held by the Consenting Noteholder or agreements between the Company and the Consenting Noteholder. After the Company becomes a debtor under the Bankruptcy Code, the Participant Lenders will temporarily forbear (subject Consenting Noteholder shall be entitled to the terms hereof) from the exercise of their default-related any rights or remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders it has in connection with any proceeding commenced under any bankruptcy or insolvency lawthe Bankruptcy Cases; provided, including without limitationhowever, to any relief that so long as both this Agreement and the Securities Purchase Agreement remain in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventeffect, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Consenting Noteholder agrees to exercise any and all of their respective such rights and remedies under any or all only in a manner consistent with the provisions of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights")Securities Purchase Agreement. For purposes of the foregoingcertainty, the Borrower and parties hereto acknowledge that the Subsidiary Guarantors acknowledge and agree that execution and delivery of Consenting Noteholder specifically preserves whatever rights it may have to compel the Companies to fulfill their fiduciary duties in connection with the Securities Purchase Agreement or in the Chapter 11 Cases. Restrictions on Transfer. So long as this Agreement remains in effect, the Consenting Noteholder agrees that it shall constitute not, without the making prior written consent of the Company, (a) sell, transfer, assign, pledge, gift or otherwise dispose of any necessary demand of its Restricted Claims in whole or in part, or any interest therein, unless the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any transferee thereof accepts such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary Restricted Claims subject to the terms of this Agreement.
(e) The Borrower , as evidenced by an agreement executed by such transferee and delivered to the Subsidiary Guarantors acknowledge and agree Company prior to the transfer that provides, among other things, that the Company is an express third-party beneficiary of such agreement or (b) grant any proxies, deposit any of the Participant Lenders hereunder to forbear from exercising their default-related remedies its Restricted Claims into a voting trust, or enter into a voting or tendering agreement with respect to any of the Specified Defaults shall not constitute a waiver Restricted Claims, unless such arrangement provides for compliance with this Agreement. In the event that the Consenting Noteholder transfers such Restricted Claims prior to the last date for voting on the Plan, the transferee of such Specified Defaults Restricted Claims shall comply with and that be subject to all the Lenders expressly reserve all rights terms of this Agreement, including, but not limited to, the Consenting Noteholder's obligations to vote in favor of the Plan and remedies that shall, as a condition precedent to such transfer, execute an agreement with the Administrative Agent Company and the Lenders now or may Investors on terms substantially identical in all material respects to the future have under any or all terms of this Agreement and a ballot indicating its acceptance of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Plan.
Appears in 1 contract
Samples: Lock Up, Forbearance, and Voting Agreement (Pinnacle Holdings Inc)
Forbearance. (a) The Participant Lenders agree that until In reliance upon the expiration representations, warranties and covenants of the Forbearance Periodeach Borrower and Guarantor contained in this Agreement, the Participant Lenders will temporarily forbear (and subject to the rights and remedies of Lender set forth in Sections 5 and 6 hereof and to all of the other terms hereof) and conditions of this Agreement and any documents or instruments executed in connection herewith, Lender agrees to forbear from the exercise of their default-related exercising its rights and remedies under the Credit Financing Agreements, Loan Documents applicable law or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent effect that the availability rights and benefits otherwise available to Borrower under the Loan Agreement in the absence of the Existing Defaults shall continue, subject to the amendments and modifications contained herein, until the earliest of the following dates (the earliest of such remedies arises exclusively from dates being referred to herein as the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during “Forbearance Termination Date”):
(i) the Forbearance Period with all provisionsMaturity Date, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any and
(ii) the date of the Loan Documents during the continuance occurrence of any a Forbearance Default or any other Event of Default; provided further that , other than the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawExisting Defaults.
(b) Upon a the Forbearance Termination EventDate, the agreement of the Participant Lenders hereunder Lender to forbear from exercising their default-related remedies shall immediately automatically and without further action terminate without the requirement and be of any demandno force and effect, presentment, protest or notice of any kind, all of which the Borrower it being understood and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree agreed that the Administrative Agent and the Lenders may at any time thereafter proceed effect of such termination will be to permit Lender to immediately exercise any and all of their respective its rights and remedies under any the Financing Agreements, applicable law or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaultsotherwise.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Each Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree Guarantor agrees that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Obligations shall, if not sooner paid, be absolutely and unconditionally due and payable in full in cash by Borrower or Guarantor to Lender on the Forbearance Termination Date. In addition, at any time on or after the Forbearance Termination Date, Lender may, at its option, terminate any provision of the Loan Documents and/or applicable law Agreement relating to future Revolving Loans or Letter of Credit Accommodations by Lender to Borrower. No termination of the Loan Agreement or any provisions thereof or any of the other Financing Agreements shall relieve or discharge such Borrower or Guarantor of its respective duties, covenants and obligations under the Loan Agreement and the other Financing Agreements until all Obligations have been indefeasibly paid and satisfied in connection with all Defaults full in immediately available funds on terms and Events conditions acceptable to Lender. Each Borrower and Guarantor hereby expressly waives any right to receive notification under the UCC or otherwise of Default (including without limitation the Specified Defaults)any disposition of any Collateral by Lender or its designee, and waives any rights under UCC Sections 9-611, 9-620(e) and 9-623.
Appears in 1 contract
Samples: Forbearance Agreement and Fifth Amendment to Loan and Security Agreement (Drugmax Inc)
Forbearance. (a) The Participant Lenders agree that until Noteholder agrees that, for the expiration of period from the Forbearance Period, the Participant Lenders will temporarily forbear (subject Effective Date to the terms hereof) from the Termination Date (as defined below), it will not exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during remedies available to it, nor will it instruct the continuance Trustee to exercise any of the remedies available to it, and it hereby instructs the Trustee to not exercise any of the remedies available to it, in each case, under the Indentures (including, without limitation, the right to accelerate the Notes as contemplated in Section 6.2 of the Indentures) solely as a result of the occurrence of any Specified Indenture Default. On the Termination Date, all of the terms and provisions of the Indentures with respect to the Specified Indenture Defaults shall have the same force and effect as if this Agreement had not been entered into by the parties hereto, and the Noteholder and the Trustee shall have all of the rights and remedies afforded to them under the Indentures and under applicable law with respect to the Specified Indenture Defaults as though no forbearance had been granted by them as provided hereunder, without any further action by the Noteholder or the Trustee. Nothing in this Section 2 shall affect, or shall be deemed to affect, any of the rights and remedies of the Noteholder or the Trustee under, or in connection with, the Indentures with respect to any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and Specified Indenture Defaults, or any other event or occurrence. The "Termination Date" shall be the Subsidiary Guarantors earliest of ("Third Party Rights"). For purposes of i) September 15, 2003, (ii) the foregoingdate on which each Specified Indenture Default has been cured or waived, which cure or waiver shall have become effective, through amendments to the Borrower and Indentures or otherwise or (iii) the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute date on which the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
Bank Forbearance (das defined below) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act is terminated in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementthereof.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Noteholder Forbearance Agreement (Aurora Foods Inc /De/)
Forbearance. (a) 2.1 The Participant Lenders agree that until the expiration Lender Group hereby agrees, as of the Forbearance PeriodEffective Date (as defined below), to forbear from exercising any rights or remedies under Section 8.1 of the Credit Agreement with respect to the Designated Events of Default until the earliest of any of the following: (i) the date of the occurrence of a breach or default under this Agreement; (ii) the date of the occurrence of a Default or Event of Default that is not a Designated Event of Default; or (iii) March 2, 2009 (collectively, the Participant Lenders will temporarily forbear (subject “Forbearance Termination Date”).
2.2 Each Borrower and Guarantor hereby acknowledge and agree that upon the Forbearance Termination Date, the forbearance provided under this Section 2 shall terminate and the Lender Group shall have the right to exercise any and all rights and remedies under Section 8.1 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity due to the terms hereof) existence of the Designated Events of Default. Each Borrower and Guarantor hereby further acknowledge and agree that, from and after the exercise Forbearance Termination Date, the Lender Group shall be under no obligation of their default-related any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Default or any other Event of Default (whether similar or dissimilar to the Designated Events of Default).
2.3 The foregoing notwithstanding, if and to the extent that the Lender Group continues to make Advances or otherwise extend credit under the Credit AgreementsAgreement, Loan Documents or otherwise, against notwithstanding the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance occurrence of any Default or Event of Default; provided further that the agreement , whether specified herein or otherwise, (a) such Advances or other extension of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy credit which hereafter may be made available to Borrowers shall be made, issued, caused to be issued, or executed, as applicable, in the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender Group’s sole and absolute discretion, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (b) Upon no such action shall be construed as (i) a Termination Event, the agreement waiver or forbearance of any member of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Lender Group’s rights, remedies, and powers against Borrowers, Guarantors or the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, Collateral (including, without limitation, the Specified Defaults.
(c) For right to terminate without notice the avoidance making of doubt, nothing herein limits the right of the Administrative Agent Advances or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand other extensions of credit under the Credit Agreement) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise (ii) a waiver of any such Third Party Rights Default or Event of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Default or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Designated Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Samples: Forbearance Agreement (Rbg, LLC)
Forbearance. (a) The Participant Lenders Effective as of the Fourth Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Fourth Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Fourth Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Fourth Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Fourth Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) December 6, 2007; and (ii) two business days after the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything Noteholder Group to the contrary in Company and Lender of a written notice terminating the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Fourth Forbearance
Appears in 1 contract
Samples: Forbearance Agreement (Wornick CO)
Forbearance. Subject to the terms and conditions contained herein and subject to performance by Borrower of all of the terms of this Agreement and the Loan Agreement and Loan Documents after the date hereof, Lender shall forbear from exercising any remedies that Lender has against Borrower as a result of the occurrence of the Existing Non-Compliance Event, until the earlier of the following dates (the “Forbearance Period”): (i) July 31, 2020 or (ii) the date any of the following (an “Additional Non-Compliance Event”) shall occur: (a) The Participant Lenders agree an Event of Default under the Loan Agreement or any Loan Document occurs (including, without limitation, any Event of Default consisting of the non-compliance with the financial covenant set forth in Recital C for any periods other than the period specified therein, and any Default or Event of Default which has occurred as of this date which is not an Existing Non-Compliance Event) or (b) Borrower fails to pay any amount due under this Agreement or to perform any covenant or other agreement contained in this Agreement or any other document entered into pursuant hereto, or any breach by Borrower of any representation or warranty of this Agreement. This forbearance shall not be deemed a continuing waiver or forbearance with respect to any Event of Default of a nature similar to the Existing Non-Compliance Event that until may have occurred before or may occur after the expiration date of this Agreement. At the end of the Forbearance Period, the Participant Lenders will temporarily forbear (Forbearance Period under this Agreement shall expire automatically, immediately, and without notice or demand, and subject to Section 4 below, Lender shall be entitled to the terms hereof) from the immediate exercise of their default-related all the rights and remedies available to it under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors otherwise at law. Nothing in this Agreement shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance constitute a waiver of any Default or Event of Default; provided further that Default under the agreement Loan Documents or of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent Lender’s rights or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any other indebtedness now or all of hereafter existing between the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Lender and the Subsidiary Guarantors ("Third Party Rights")Borrower. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction This agreement is being executed by the Participant Lenders Lender to accommodate the request of Borrower, and Borrower understands and agrees that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything has no obligation to the contrary grant further forbearances in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementfuture.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 15, 2020, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted, during the Forbearance Period, to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, or an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under the respective Applicable Agreements), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the respective Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Samples: Forbearance Agreement (AG Mortgage Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders agree Each Company hereby acknowledges and agrees that until the Designated Defaults have occurred and are continuing, each of which entitles each Creditor Party to exercise its rights and remedies under the Financing Agreements, applicable law or otherwise. No Creditor Party has waived, presently intends to waive and may ever waive such Designated Defaults and nothing contained herein or the transactions contemplated hereby shall be deemed to constitute in any manner whatsoever any such waiver; provided, however, that the Creditor Parties temporarily waive, through the expiration of the Forbearance PeriodPeriod (as defined below), any Events of Default arising solely from the Participant Lenders will temporarily forbear Company’s failure to timely deliver to Agent audited year end financial statements for its fiscal year ended December 31, 2008 as a result of not having obtained an audit report of its independent certified public accountants with respect thereto (subject “Audit Report”) and the Company’s resulting failure to file with the SEC its Form 10-K for such fiscal year solely on account of not having obtained the Audit Report. Each Company hereby acknowledges and agrees that each Creditor Party has the presently exercisable right to declare the Obligations to be immediately due and payable under the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawFinancing Agreements.
(b) Upon a Termination EventIn reliance upon the representations, warranties and covenants of each Company contained in this letter agreement (this “Agreement”), and subject to the agreement terms and conditions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, this Agreement (including, without limitation, the Specified Defaults.
(cconditions to effectiveness set forth in Section 4 below) For the avoidance of doubtand any agreements, nothing herein limits the right of the Administrative Agent documents or the Lendersinstruments executed in connection herewith, including during the Forbearance PeriodPeriod (as defined below), each Creditor Party will forbear from exercising its rights and remedies under the Financing Agreements and applicable law in respect of or arising out of any and all Designated Defaults. Notwithstanding the foregoing, nothing contained herein shall impair in any manner whatsoever any Creditor Party’s right to take administer the credit facility and/or to collect, receive and/or apply proceeds of each Company’s accounts receivable and/or any action other Collateral to preserve or exercise rights or remedies against parties other than the Borrower and Obligations (as defined in each Financing Agreement in which such term is defined), in each case, in accordance with the Subsidiary Guarantors ("Third Party Rights")terms of the Financing Agreements. For purposes of the foregoingthis Agreement, the Borrower and term “Forbearance Period” shall mean the Subsidiary Guarantors acknowledge and agree that execution and delivery period commencing on the first date upon which all of the conditions to the effectiveness of this Agreement set forth in Section 4 below shall constitute have been satisfied to the making satisfaction of the Creditor Parties and ending on the earlier to occur of (i) June 3, 2009 and (ii) the occurrence of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Forbearance Default (including without limitation the Specified Defaultsas defined below).
Appears in 1 contract
Samples: Forbearance Agreement and Omnibus Amendment to Agreements (ProLink Holdings Corp.)
Forbearance. 1.1 Subject to the terms and conditions of this Agreement, and provided that no Forbearance Default (aas defined below) The Participant Lenders agree has occurred, Lender agrees that until during the period commencing on the date of this Agreement and ending on and including May 15, 2014 (the "Forbearance Period"), Lender will not file suit (as defined in the Promissory Note) or file suit or take any other action to enforce its rights under the Promissory Note. This limited forbearance does not extend to any other default or Events of Default under any other provision of the Promissory Note or any of the other rights and remedies available to Lender under the Promissory Note. Upon the earlier of (i) the occurrence of a Forbearance Default and (ii) the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the Lender’s agreement of the Participant Lenders temporarily to forbear shall not apply automatically be deemed terminated and Lender shall be entitled to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including immediately and without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, exercise all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified DefaultsPromissory Note.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding 1.2 Notwithstanding anything to the contrary in the Credit Agreementscontained herein, the Administrative Agent shall not be required effectiveness of the agreement made by Lender pursuant to act if directed against the Borrower or the Subsidiary Guarantors if such action Section 3.1, and Lender’s agreement to forbear as described in Section 2 above, is contrary subject to the terms fulfillment, to the exclusive satisfaction of Lender in its sole and absolute discretion, of each of the following conditions before the end of the Forbearance Period:
(i) Borrower shall complete and submit to the Securities and Exchange Commission (“SEC”) any and all required quarterly and annual filings (e.g. 10Qs and 10Ks) in order to become reinstated as a fully-reporting public company on the Over-the-Counter (OTC) stock exchange (the “SEC Filings”);
(ii) Borrower shall submit the required documentation to the Financial Industry Regulatory Authority (“FIRNA”) in order to be reinstated as a listed public company on the Over-the-Counter Bulletin Board (OTCBB) stock exchange; and
i.1 The following events shall constitute "Forbearance Defaults:”
(i) Any default or Event of Default under the Promissory Note, other than the Existing Default, shall have occurred and by continuing;
(ii) Borrower shall fail to comply with any provision of this Agreement.; or
(eiii) The Borrower shall fail to provide to Lender within thirty (30) Business Days’ request therefore, such information as Lender may reasonably request with respect to Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Collateral.
Appears in 1 contract
Samples: Forbearance Agreement (Mount Knowledge Holdings, Inc.)
Forbearance. Borrower hereby acknowledges that (ai) The Participant Lenders Borrower has failed to comply with Section 9.1 of the Credit Agreement as a result of the existence of overdue accounts payable in amounts which are not otherwise permitted under such Section (the “Accounts Payable Default”), (ii) Borrower has failed to comply with Section 10.1 of the Credit Agreement as a result of its current ratio being less than 1.0 to 1.0 as of the end of the Fiscal Quarter ending December 31, 2008 (the “Current Ratio Default”, and together with the Accounts Payable Default, the “Specified Defaults”), and (iii) the Specified Defaults constitute Events of Default under the Credit Agreement. In reliance on the representations, warranties, covenants and agreements contained in this First Amendment, and subject to the satisfaction of each condition precedent set forth in Section 8 hereof but only so long as no Forbearance Period Termination Event shall have occurred, Administrative Agent (on behalf of the Banks) hereby agree that to forbear until the Forbearance Period Termination Date from exercising their rights and remedies arising as a result of the occurrence of the Specified Defaults. Notwithstanding the foregoing, the forbearance granted by Administrative Agent (on behalf of the Banks) pursuant hereto shall not constitute and shall not be deemed to constitute a waiver of any of the Specified Defaults or of any other Default or Event of Default under the Loan Papers. On and after the Forbearance Period Termination Date, or such earlier date on which a Forbearance Period Termination Event occurs, Administrative Agent’s (on behalf of the Banks) agreement hereunder to forbear shall terminate automatically without further act or action by Banks, and Administrative Agent and Banks shall be entitled to exercise any and all rights and remedies available to them under the Credit Agreement or any of the other Loan Papers, at law, in equity, or otherwise without any further lapse of time, expiration of applicable grace periods, or requirements of notice, all of which are hereby expressly waived by Borrower and the other Credit Parties. Borrower and the other Credit Parties hereby acknowledge and understand that upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from if all the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors Defaults have not been waived in accordance with this First Amendment, or if there shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under at such time exist any of the Loan Documents during the continuance of any additional Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the , then Administrative Agent and Banks shall have the right to proceed to exercise any or all available rights and remedies, which may include foreclosure on the Lenders in connection with collateral for the Obligations and/or institution of legal proceedings. Administrative Agent and Banks shall have no obligation whatsoever to extend the Forbearance Period, waive any proceeding commenced under Defaults or Events of Default, defer any bankruptcy payments, or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to further forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaultsremedies.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Notwithstanding anything to the contrary in the Credit Agreement and solely upon the terms and subject to the conditions of this Agreement, from the date hereof until December 31, 2023 (the “Forbearance Period”), the Administrative Agent and Lenders agree that until to forbear from exercising any of their rights and remedies against the Borrower solely with respect to the occurrence of the Specified Default. Notwithstanding anything to the contrary herein, the Forbearance Period shall terminate automatically and without notice of termination immediately upon the occurrence of any Default or Event of Default (other than the Specified Default).
(b) Upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders and Xxxxxxx hereunder to forbear from exercising their default-related respective rights and remedies with respect to the Specified Default shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaives. The Borrower and the Subsidiary Guarantors agree agrees that any or all of the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Credit Agreement, any other Loan Documents Document and/or applicable law, including, without limitation, including their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, respect to the Specified DefaultsDefault.
(c) For This Section 4 of this Agreement is limited in nature and nothing contained in this Amendment is intended, or shall be deemed or construed, to (i) constitute a waiver of the avoidance Specified Default or any existing or future Defaults or Events of doubtDefault (including any Event of Default arising from the Specified Default) or compliance with any term or provision of the Loan Documents or at law or in equity, nothing herein limits (ii) establish a custom or course of dealing between the right Borrower, on the one hand, and the Administrative Agent and/or any Lenders, on the other hand, or (iii) waive, alter or impair the obligations or any of the rights or remedies of the Administrative Agent or the LendersLenders under the Loan Documents, including during the Forbearance Period, to take any action to preserve at law or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersin equity.
(d) Execution of As consideration for the Lenders entering into this Agreement constitutes a direction by Amendment and providing the Participant forbearance pursuant to this Section 4, the Borrower agrees to pay to the Lenders that the Administrative Agent act hold Tranche A Term Loans, on a ratable basis in accordance with its terms. Each Participant Lender agrees thattheir proportional share of the Tranche A Term Loans, notwithstanding anything a forbearance fee in the aggregate amount of $5,000,000, which shall be paid in kind and automatically added to the contrary in outstanding principal amount of the Credit Agreements, Tranche A Term Loans on the Administrative Agent Second Amendment Effective Date (the “Forbearance Fee”). Such fee shall be deemed fully earned and paid on the Second Amendment Effective Date and shall not be required refundable for any reason whatsoever and shall be in addition to act if directed against the Borrower any other fees, costs and expenses payable hereunder or the Subsidiary Guarantors if such action is contrary pursuant to the terms Loan Documents. From and after the date hereof, the Forbearance Fee shall constitute principal of this Agreement.
(e) the Tranche A Term Loans for all purposes under the Loan Documents. The Borrower and the Subsidiary Guarantors acknowledge each Obligor acknowledges and agree agrees that the agreement Forbearance Fee is provided in good and valuable consideration of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent this Amendment and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)forbearance contemplated by this Section 4.
Appears in 1 contract
Samples: Credit Agreement and Guaranty and Revenue Interest Financing Agreement (Impel Pharmaceuticals Inc)
Forbearance. 1. For the period beginning as of the date first above written (the “Commencement Date”) and ending on the earlier to occur of (a) The Participant Lenders agree that until 5:00 p.m., New York time, on July 31, 2007 and (b) termination of this forbearance as provided herein (the expiration “Forbearance Period”), the Agent and the Lenders, without waiving, curing or ceasing the continuance of the Forbearance PeriodSpecified Events of Default, the Participant Lenders will temporarily hereby agree to forbear (subject to the terms hereof) from the exercise of any of their default-related rights and remedies available under the Credit Agreements, Agreement and the Loan Documents or otherwiseon account of the Specified Events of Default. In addition, against the Borrower Agent and the Subsidiary Guarantors Lenders hereby waive, solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsand so long as no Forbearance Default has occurred, limitationsSection 7.1 of the Credit Agreement; provided, restrictions however, neither the Agent nor any Lender shall have any obligation to issue, extend or prohibitions that would otherwise renew, and the Borrower shall not request the issuance, extension or renewal of, any Letter of Credit during the Forbearance Period. The Agent’s and Lenders’ forbearance provided for herein shall be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available only with respect to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawSpecified Events of Default and shall automatically terminate and cease to be of force and effect, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies as may be available under any or all of the Loan Documents and/or Credit Agreement and under applicable law, including, without limitation, their respective rights and remedies in connection with upon or after the occurrence of any other Default or all Event of Default under the Defaults and Credit Agreement or any Loan Document (other than the Specified Events of Default) or a default under the terms of this Agreement (individually a “Forbearance Default” and, including, without limitationcollectively, the Specified “Forbearance Defaults”).
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during 2. During the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than and provided that no Forbearance Default has occurred and that the Borrower terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery conditions of this Agreement shall constitute are satisfied, the making Lenders agree that they will not accelerate, nor direct the Agent to accelerate, the indebtedness owed to the Lenders under the Credit Agreement or otherwise exercise any of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights their rights and remedies, in each case, as a result of the Administrative Specified Events of Default outlined herein. As set forth in that certain Reservation of Rights Letter, dated as of May 20, 2007, from the Agent and to the Lenders.
(d) Execution of this Agreement constitutes a direction by Borrower, commencing on May 20, 2007, all outstanding Obligations have been accruing interest at the Participant Lenders that the Administrative Agent act Default Rate in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in Section 1.5(d) of the Credit Agreements, Agreement. All outstanding Obligations shall continue to accrue interest from the Administrative Agent shall not be required to act if directed against date hereof until paid in full at the Borrower or Default Rate in accordance with Section 1.5(d) of the Subsidiary Guarantors if such action is contrary to the terms of this Credit Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 6:30 p.m. Eastern Daylight Time on the first business day that until is fifteen (15) calendar days after the expiration Effective Date, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted, during the Forbearance Period, to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or applicable law; provided further that nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, or an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under the respective Applicable Agreements), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the respective Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Samples: Forbearance Agreement (AG Mortgage Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date, the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the applicable Indenture Trustee and any broker or other Person that holds the Notes on behalf of such Noteholders, and by signature hereto so direct the applicable Indenture Trustee pursuant to Sections 502, 507 and 512 of the applicable Indenture and such brokers or other Persons, not to exercise, any rights and remedies against Holdings, the Participant Lenders will temporarily forbear (subject U.S. Issuer, the Canadian Issuer, or the Subsidiaries that are available under the applicable Indenture and/or applicable law solely with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Interest Defaults and the Subsidiary Guarantors solely Financial Reporting Defaults; provided, however, the Noteholders shall be entitled to assert a right to the accrual of default interest to the extent provided under the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply applicable Indenture during the Forbearance Period but may not seek any remedy or take any action with all provisionsrespect thereto during the Forbearance Period; provided, limitationshowever, restrictions that nothing herein shall restrict, impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during Noteholders’ rights under this Second Amended and Restated Agreement, and provided further that no such forbearance shall constitute a waiver with respect to any Defaults (other than the continuance Interest Defaults and Financial Reporting Defaults) or any other Events of Default under the applicable Indenture.
(b) As used herein, the term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the earlier to occur of (i) February 13, 2009; and (ii) two (2) Business Days after the delivery by Paul, Weiss, as counsel to the Noteholder Group, to the applicable Issuer and the applicable Indenture Trustee a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time but only upon or after the occurrence of any Forbearance Default; provided, however, that notwithstanding the foregoing, this Second Amended and Restated Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsections (A) and (F) below, without the need for delivery of the Termination Notice or any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the valid acceleration of all indebtedness arising under (i) the U.S. Indenture, (ii) the Canadian Indenture or (iii) that certain credit agreement dated as of April 6, 2005 (as amended or modified, the “Credit Agreement”), among the Issuers, as borrowers, Holdings, as guarantor, certain lenders and The Bank of Nova Scotia, as Administrative Agent; (B) the failure of the Issuers and Holdings to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction which determination shall be made by the holders of a majority in principal amount of the Notes issued under the Indentures in good faith and their reasonable discretion; (C) the occurrence of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties Default other than the Borrower Interest Defaults and Financial Reporting Defaults; (D) the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingU.S. Issuer, the Borrower Canadian Issuer, Holdings or the Subsidiaries to comply with any material term, condition, covenant or agreement set forth in this Second Amended and Restated Agreement; (E) the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making failure of any necessary demand representation or warranty made by the U.S. Issuer, the Canadian Issuer, Holdings or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights Subsidiaries under this Second Amended and Restated Agreement to be true and correct in all material respects as of the Administrative Agent and date when made; (F) the Lenders.
commencement by or against the U.S. Issuer, the Canadian Issuer, Holdings, or any Subsidiary of a case under title 11 of the United States Code, the Companies’ Creditors Arrangement Act or any other act that seeks relief under any comparable liquidation, reorganization or insolvency regime or proceeding that is not, in the case of proceedings commenced against the U.S. Issuer, the Canadian Issuer, Holdings or the Subsidiaries, dismissed within five (d5) Execution Business Days of this Agreement constitutes a direction by commencement; or (G) the Participant Lenders that U.S. Issuer, the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatCanadian Issuer, notwithstanding anything Holdings, or the Subsidiaries pays any management, sponsor or consulting fees to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower stockholders of Masonite Holding Corp. or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementtheir affiliates.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Forbearance Agreement (Masonite International Inc.)
Forbearance. (a) The Participant Lenders Obligors hereby agree that until but for the expiration forbearance of the Forbearance PeriodBank set forth below, the Participant Lenders will temporarily forbear (which is subject to the satisfaction of the terms hereofand conditions set forth herein, the Bank would be entitled to pursue it rights and remedies for the enforcement of the Obligors’ obligations under the Loan Documents. The Obligors further agree that (i) the Existing Events of Default are not cured or waived by reason of the Bank’s execution of this Agreement and (ii) the Acceleration shall not be affected by the forbearance of Bank set forth below. The Bank is only agreeing in this Agreement to forbear from the exercise of their default-related its rights and remedies under which may arise or have arisen by virtue of the Credit AgreementsExisting Events of Default, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability upon termination of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with (as hereinafter defined), the Bank shall remain entitled to pursue any and all provisions, limitations, restrictions of its rights and remedies which may arise or prohibitions that would otherwise be effective or applicable under any have arisen by virtue of the Loan Documents during the continuance of any Default or Event Existing Events of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon The Bank agrees that for a period (the “Forbearance Period”) commencing on the Effective Date and ending on the Forbearance Termination EventDate (as hereinafter defined), the agreement Bank will not commence any Foreclosure Proceedings as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately Existing Events of Default. The Bank’s forbearance under this Agreement will automatically terminate without any notice to the requirement Borrower Parties or any other Person on such date (the “Forbearance Termination Date”) being the earliest of (i) 4:59 p.m., (Houston, Texas time) on December 28, 2006, (ii) the occurrence of any demand, presentment, protest default or notice event of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies default under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of (other than the Defaults and Existing Events of Default), including, without limitation(iii) the date on which any of the Forbearance Conditions described in Section 5 below shall fail to be satisfied and (iv) the date on which any of the Borrower Parties shall fail to satisfy any of their obligations or covenants under this Agreement or any representation or warranty made by any Borrower Party in this Agreement fails to be true and correct in any material respect. On the Forbearance Termination Date, the Specified DefaultsBank’s agreement hereunder to forebear from exercising its remedies under the Loan Documents with respect to the Existing Events of Default shall automatically cease and terminate and be of no further force and effect.
(c) For Notwithstanding the avoidance provisions of doubtthis Agreement, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, Bank is entitled to take any and all action as may be necessary and appropriate to preserve perfect, protect and defend the priority of any liens or exercise rights security interests granted to it pursuant to the Loan Documents against the claims and actions of any other creditors (including any bankruptcy trustee) and to make such filings as may be necessary and appropriate to insure or remedies against parties other than maintain the Borrower priority and perfection of such liens. No failure on the Subsidiary Guarantors ("Third Party Rights"). For purposes part of the foregoingBank to exercise, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement no delay in exercising, any right or remedy hereunder shall constitute the making operate as a waiver of any necessary demand such right or the giving remedy nor shall any single or partial exercise of any necessary notice for purposes of preserving and/or permitting right or remedy hereunder preclude any other or further exercise thereof or the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsother right or remedy. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent herein provided are cumulative and the Lenders now not exclusive of any rights or may in the future have under any or all of the Loan Documents and/or remedies provided by applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Samples: Supplemental Limited Forbearance Agreement (Pizza Inn Inc /Mo/)
Forbearance. (a) The Participant Lenders agree Borrower hereby acknowledges and agrees that until the expiration each of the Forbearance PeriodExisting Defaults exists and is continuing without timely cure by Borrower and Borrower further agrees that but for the forbearance of Lender set forth below, Lender would be entitled to pursue its remedies for the Participant Lenders will temporarily enforcement of Borrower's obligations under the Loan Agreement. Borrower further agrees that such Existing Defaults are not cured or waived by reason of Lender's execution of this Amendment. Lender is only agreeing in this Amendment to forbear (subject to the terms hereof) from the exercise of their default-related its remedies under on the Credit Agreements, Loan Documents terms set forth herein which may arise or otherwise, against have arisen by virtue of the Borrower Existing Defaults and the Subsidiary Guarantors solely to the extent the availability upon termination of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with (as hereinafter defined), Lender shall remain entitled to pursue any and all provisions, limitations, restrictions of its remedies which may arise or prohibitions that would otherwise be effective or applicable under any have arisen by virtue of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.Existing Defaults. 0000000x0 3
(b) Upon Lender agrees that for a period (the "Forbearance Period") commencing on the date of this Amendment and ending on the Forbearance Termination EventDate (hereinafter defined), Lender will not exercise any of its rights or remedies under the Loan Agreement which may arise or have arisen from or by virtue of the Existing Defaults. Lender's forbearance under this Amendment will automatically terminate without any notice to Borrower on the date being the earliest of (such date, the agreement "Forbearance Termination Date"): (i) the date that Borrower shall be adjudicated insolvent or shall generally not pay or admit in writing its inability to pay, its debts as they become due, or makes a general assignment for the benefit of creditors, or any proceeding shall be instituted by Borrower seeking to adjudicate it insolvent, seeking liquidation, dissolution, winding-up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for Borrower or for any substantial part of its property, or Borrower shall take any action in furtherance of any of the Participant Lenders foregoing or any proceeding of the type referred to in this clause is filed, or any such proceeding is commenced against Borrower, or Borrower by any act indicates approval thereof, consent thereto or acquiescence therein, or an order for relief is entered in an involuntary case under the bankruptcy laws of the United States or an order, judgment or decree is entered appointing a trustee, receiver, custodian, liquidator or similar official or adjudicating Borrower insolvent, or approving the petition in any such proceedings, (ii) the date that Borrower shall fail to perform or observe any covenant or agreement contained in this Amendment, (iii) the date upon which Borrower's obligations under the Loan Agreement have been satisfied in full, and (iv) October 1, 2009.
(c) On the Forbearance Termination Date, Lender's agreement hereunder to forbear forebear from exercising their default-related its rights and remedies under the Loan Agreement shall immediately automatically cease and terminate without the requirement and be of any demandno further force and effect, presentment, protest or notice of any kind, all of at which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Lender shall be entitled to exercise any and all of their respective rights and remedies available under any or all of the Loan Documents and/or Agreement or under applicable law. Borrower waives any and all further notice, includingpresentment, without limitation, their respective rights and remedies in connection notice of dishonor or demand with any or all of respect to its obligations under the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersLoan Agreement.
(d) Execution Notwithstanding the provisions of this Amendment, Lender is entitled to take any and all action as may be necessary and appropriate to perfect, protect and defend the priority of its liens under the Loan Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower claims and actions of any other creditors (including any bankruptcy trustee) and to make such filings as may be necessary and appropriate to insure or maintain the Subsidiary Guarantors if such action is contrary priority and perfection of its liens. In order to preserve the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies status quo with respect to any statutes of limitations which may be applicable to any action by Lender for enforcement of its rights under the Specified Defaults Loan Agreement or applicable law, Lender and Borrower agree that all of said statutes are hereby tolled until the occurrence of the Forbearance Termination Date. No failure on the part of Lender to exercise, and no delay in exercising, any right hereunder shall not constitute operate as a waiver of any such Specified Defaults right nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and that the Lenders expressly reserve all rights and not exclusive of any remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or provided by applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Forbearance. Subject to the terms and conditions set forth herein, from the date this Agreement is fully executed and delivered by the parties (the "Effective Date") through the earlier of (a) The Participant the date on which the Loan Parties fail to comply with the covenants contained in Section 7 of this Agreement, (b) the date of the commencement by the Borrower of a voluntary bankruptcy, insolvency, reorganization or other similar proceeding or the commencement of any similar non-voluntary case or proceeding with respect to the Borrower that remains undismissed or stayed for a period of 30 days following the date of filing, and (c) 12:00 noon (EST) on April 30, 2011 (the "Forbearance Period"), the Senior Lenders hereby agree to forbear from exercising any and all rights or remedies available under the Senior Loan Documents or applicable law as a result of the Specified Defaults, but only to the extent that until such rights and remedies arise solely as a result of the occurrence and continuation of the Specified Defaults; provided, however, that in each case, the Senior Lenders shall be free to exercise any or all rights and remedies arising on account of any Specified Default at the end of the Forbearance Period; provided further, that except as expressly set forth herein, this Agreement shall not operate as a waiver, amendment or modification of the Senior Loan Documents. Notwithstanding anything contained in the Senior Loan Documents or this Agreement to the contrary, the Borrower will be entitled to repay the Bridge Notes (other than with proceeds from the New Facility) during the Forbearance Period and that upon such repayment of the Bridge Notes, the Specified Default will be deemed cured and the Senior Lenders will not be entitled to exercise any rights or remedies by virtue of the Specified Default following the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Forbearance Agreement (Quantum Fuel Systems Technologies Worldwide, Inc.)
Forbearance. (a) The Participant Lenders agree So long as no Event of Default, other than the Existing Defaults, occurs or exists, subject to the terms and conditions set forth herein, Lender agrees that until the expiration of during the Forbearance Period, the Participant Lenders Lender will temporarily forbear not (subject x) exercise any default remedy available to the terms hereof) from the exercise of their default-related remedies Lender under the Credit Agreements, any Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective Document or applicable under law; (y) enforce collection from any Borrower or any Guarantor of any of the Loan Documents during the continuance of Obligations; or (z) foreclose on its security interest in any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall Collateral (as defined in all Loan Documents)
(a) Compliance with the terms of Section 13.3 of Loan Agreement are waived until the date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, but not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawlater than January 1, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law2009.
(b) Upon a Termination EventCompliance with terms of Sections 5.16 and 5.17 of Credit Agreement are waived until the date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandbut not later than January 1, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults2009.
(c) For To the avoidance extent that Borrower shall fail to repay the obligations owing on the 10% callable convertible promissory notes when due, compliance with Section 7.1(e) of doubtCredit Agreement shall be waived, nothing herein limits unless and until the right date that Borrower raises equity or subordinated debt on terms and conditions that are accepted by Lender, but not later than January 1, 2009. Except as expressly provided herein, this Agreement does not constitute a waiver or release by Lender of the Administrative Agent any Obligations or the Lenders, including during the Forbearance Period, to take of any action to preserve or exercise rights or remedies against parties Event of Default other than the Borrower and Existing Defaults, or of any Event of Default which may arise in the Subsidiary Guarantors ("Third Party Rights"). For purposes of future after the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery date of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance Agreement. If Borrower does not comply with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower Agreement and the Subsidiary Guarantors acknowledge Loan Documents, as modified herein, Lender shall have no further obligations under this Agreement and agree that the agreement of the Participant Lenders hereunder shall be permitted to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of exercise at such Specified Defaults and that the Lenders expressly reserve all time any rights and remedies against Borrower as it deems appropriate in its sole and absolute discretion. Borrower understands that Lender has made no commitment and is under no obligation whatsoever to grant any additional extensions of time at the Administrative Agent and the Lenders now or may in the future have under any or all end of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Forbearance Period.
Appears in 1 contract
Samples: Amendment and Forbearance Agreement (Tri-S Security Corp)
Forbearance. (a) The Participant Lenders agree that until A. Provided that, and only for so long as, Borrower timely makes the expiration of payments required by the Forbearance Periodpreceding paragraph, the Participant Lenders will temporarily forbear (subject to the terms hereof) and conditions set forth herein, Lender will forbear from the exercise of their exercising any default-related rights and remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability for a limited period of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors time in accordance with this Agreement. The forgoing shall comply during the Forbearance Period with all provisionsnot constitute a novation, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance waiver of any Default rights or Event remedies should Borrower fail to timely make all such payments, all of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawwhich are expressly reserved.
(b) Upon a Termination EventB. Should Borrower fail to make any payment for any reason whatsoever, the agreement of the Participant Lenders Lender hereunder to forbear from exercising their any default-related rights and remedies shall immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaives. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders Lender may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any or all of the Loan Documents and/or loan documents and applicable law, including, without limitation, their respective its rights and remedies with respect to Borrower's failure to pay the Note in connection with full and any other default or event of default that is continuing at such time. Without limiting the generality of the foregoing, upon any failure to pay, without the requirement of any demand, presentment, protest, or notice of any kind, Lender may foreclose on any or all Collateral, including without limitation all of Borrower's assets, commence any legal or other action to collect any or all of the Defaults Obligations from any person, and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any other enforcement action to preserve or otherwise exercise rights any or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under provided for by any or all of the Loan Documents and/or loan documents or applicable law in connection with all Defaults and Events of Default (law, including without limitation Article 9 of the Specified Defaults)Uniform Commercial Code, all of which rights and remedies are fully reserved by Lender.
C. Any agreement to extend the Forbearance Period, if any, must be set forth in writing and manually executed by a duly authorized signatory of Lender. Borrower acknowledges that Lxxxxx has not made any assurances concerning any possibility of an extension of the forbearance period, and has stated it will not agree to extend the period for any reason.
Appears in 1 contract
Samples: Forbearance Agreement (Ilustrato Pictures International Inc.)
Forbearance. Solely as an accommodation to the Company (aand without waiving any rights or remedies available to the Investors under the Note Purchase Agreement, the Notes, the Security Agreement (as amended and restated hereby) The Participant Lenders or any other agreement or instrument executed and delivered by the Company in connection therewith (the “Financing Documents”), the Investors, subject to the provisions of this Agreement, and in consideration of the provisions hereof, agree that to forbear from exercising their rights and remedies with respect to the Existing Defaults until November 28, 2011 (the “Forbearance Deadline”) provided that, and so long as, the following conditions (the “Conditions”) are satisfied:
i) if the Company enters into the Asset Sale, up to 100% of the proceeds from such Asset Sale will be paid directly to the Investors to be applied against the Notes and the Exchange Notes in accordance with the terms thereof; and
ii) without limiting any rights available to the Investors under the Loan Documents, if, as of the Forbearance Deadline, the Notes and the Exchange Notes shall not have been paid in full, the Investors shall be entitled to cause the Collateral Agent, pursuant to the terms of Section 3.11 of the Note Purchase Agreement, to take possession of all or any portion of the Collateral (as defined in the Amended and Restated Security Agreement) and to cause the Collateral Agent to sell or otherwise dispose of the Collateral, and all proceeds from such sales shall be applied to the Notes and the Exchange Notes until they are satisfied in full. Any failure by the Company to timely satisfy any Conditions shall be an Event of Default under the Financing Documents and the Exchange Notes. Any Event of Default under the Financing Documents or the Exchange Notes shall be a default under this Agreement. Any provision of this Agreement to contrary notwithstanding, the Investors do not waive any of the Existing Defaults and hereby preserve all of their rights and remedies with respect to such Existing Defaults. Accordingly, following the expiration of the Forbearance PeriodDeadline, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors Investors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed free to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitationFinancing Documents, the Specified Defaults.
(c) For Original Notes, the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Exchange Notes and the Subsidiary Guarantors ("Third Party Rights")Amended and Restated Security Agreement, at law or in equity, and at such time as the Investors may elect. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly Investors reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents right to declare defaults and/or applicable law in connection with all Defaults and Events of Default (including without limitation under the Specified Defaults)Financing Documents, this Agreement and the Exchange Notes that occur on or after the date hereof, whether or not enumerated in this Agreement. If there shall be any defaults or Events of Default under the Financing Documents, this Agreement or the Exchange Notes, in any case, arising at any time on or after the date hereof, none of the aforementioned defaults shall be waived, and the Investors may exercise their rights and remedies under the Financing Documents, this Agreement or the Exchange Notes, at law or in equity, and at such time as the Investors may elect.
Appears in 1 contract
Samples: Exchange, Modification and Forbearance Agreement (Ants Software Inc)
Forbearance. (a) The Participant Administrative Agent, the Lenders and the Issuing Bank agree that until the expiration in favor of the Forbearance Period, Borrower that they shall refrain from taking any action to foreclose or recover the Participant Lenders will temporarily forbear “Collateral” (subject as defined in the Pledge Agreement) or otherwise initiate collection proceedings against the Borrower with respect to the terms hereof) Pledge Defaults from the exercise date hereof through and including the earlier of their default-related remedies (i) March 31, 2015, or (ii) the occurrence of an Event of Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Agreement (Licensing) (other than a Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree Default that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any have waived in writing and all of their respective rights a Pledge Default) (the “Forbearance Period”). The Borrower acknowledges and remedies under any or all agrees that, notwithstanding the foregoing, (a) each of the Loan Documents and/or Administrative Agent, the Lenders and the Issuing Bank reserves the right to enforce each and every term of the Pledge Agreement (other than remedies resulting from a Pledge Default during the Forbearance Period), and is under no duty or obligation of any kind or any nature to grant the Borrower any additional period of forbearance beyond the Forbearance Period; (b) each action of the Administrative Agent, the Lenders and the Issuing Bank in entering into this Agreement shall not be construed as a waiver or relinquishment of, or estoppel to assert, any of Administrative Agent’s rights under the Pledge Agreement or applicable law, including, without limitation, their respective rights ; and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For each action of the avoidance of doubtAdministrative Agent, nothing herein limits the Lenders and the Issuing Bank in entering into this Agreement is without prejudice to the right of the Administrative Agent or Agent, the Lenders, including during Lenders and the Issuing Bank to pursue any and all remedies available to any of them upon expiration of the Forbearance Period, to take any action to preserve Period or exercise rights immediately upon the occurrence of an Event of Default under the Credit Agreement (Licensing) or remedies against parties a “Default” under the Pledge Agreement (other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsPledge Default).
Appears in 1 contract
Forbearance. Upon the satisfaction of each of the conditions precedent set forth in Section 5 hereof, the Holders hereby agree, for so long as (a) The Participant Lenders agree that until no Default or Event of Default (other than the expiration 2000 Forbearance Events and the 2001 Forbearance Events, each as defined below), has occurred and is continuing and (b) the Company complies with the requirements contained in this Section 1, (x) to forbear from enforcing any of its rights and remedies under Section 12.2 of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents Note Purchase Agreements or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan other Note Documents during arising solely as a result of the continuance occurrence of any of the 2000 Forbearance Events or the 2001 Forbearance Events and (y) the Holders will not demand accelerated payment of the obligations under Section 12.1 of the Note Purchase Agreements or otherwise cause any of such obligations to become immediately due and payable solely as a result of the occurrence of any of the 2000 Forbearance Events or the 2001 Forbearance Events, except that the Company shall in any event continue to be required to make any and all payments that are provided for in the Note Documents and this Amendment when and as the same are due and payable pursuant to the terms of the Note Documents and this Amendment. So long as no Default or Event of Default, other than the 2000 Forbearance Events or 2001 Forbearance Events, has occurred and is continuing, nothing herein shall be deemed to prevent the Company from exercising any right or taking any action otherwise permitted by the Note Purchase Agreements or the other Note Documents, which such right or action is conditioned upon the absence of any Default or Event of Default; provided further that . The forbearances contained in this Section 1 shall be contingent on the agreement Company's compliance with the following requirements: The Company shall not permit, at any time following January 1, 2001, Forbearance Net Finance Assets to be less than the sum of Forbearance Senior Debt and SBA Debt, as evidenced by a Borrowing Base Certificate prepared in accordance with Section 6.1(i) of the Participant Lenders temporarily to forbear Bank Loan Agreement and the Company shall not apply permit the Excess Amount to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawexceed (a) $6,700,000 from January 1, including without limitation2001 through January 31, to any relief in respect of adequate protection or relief from any stay imposed under such law.
2001, (b) Upon a Termination Event$5,700,000 from February 1, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand2001 through February 28, presentment2001, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For $5,000,000 from March 1, 2001 through March 31, 2001, or (d) $0 as of April 1, 2001 and thereafter. The Company shall deliver a copy of such Borrowing Base Certificate to the avoidance of doubt, nothing herein limits Holders substantially concurrently upon delivery thereof to the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights")Banks. For purposes of the foregoinghereof, the Borrower and following terms shall have the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).following meanings:
Appears in 1 contract
Samples: First Amendment Agreement (Medallion Financial Corp)
Forbearance. Effective as of the Forbearance Effective Date (aas defined below), in reliance upon the representations, warranties and covenants of the Obligors contained in this Forbearance Agreement, and without waiving the Specified Defaults or any other default under the Transaction Documents or Event of Default that may now exist or which may occur hereafter, each of the Collateral Agent and the Noteholder agree that, subject to the terms and conditions of this Forbearance Agreement, and in each case solely with respect to the Specified Defaults, (i) The Participant Lenders agree that until the expiration of during the Forbearance Period, the Participant Lenders Noteholder will temporarily forbear (subject not, and will not request or direct the Collateral Agent to, enforce the Noteholder’s right to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from immediate redemption as demanded in the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions Default EoD Redemption Notice or prohibitions that would otherwise be effective or applicable under exercise any of the Loan Documents during Collateral Agent’s or the continuance Noteholder’s other rights or remedies (including enforcement and collection actions) under the Transaction Documents, by operation of law or otherwise against the Obligors or any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to Collateral or other property owned by the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
Obligors (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights via set-off or recoupment), and remedies in connection with (ii) the Noteholder hereby directs the Collateral Agent to abstain from taking any or all of the Defaults actions described in the immediately preceding clause (i) during the Forbearance Period, and Events the Collateral Agent hereby agrees that it will not take any of Defaultthe foregoing actions during the Forbearance Period. The Obligors acknowledge and agree that this Forbearance Agreement is limited to the extent specifically set forth above and no other terms, covenants, provisions, rights or remedies under the Notes (including, without limitation, the Specified Defaults.
(c) For for the avoidance of doubt, nothing herein limits the right to Interest, Late Charges and any other amounts in accordance with the terms of the Administrative Agent or the Lenders, including Notes during the Forbearance Period) or any other Transaction Document or at law or in equity are intended to (or shall) be affected hereby, to take all of which remain in full force and effect. Each Obligor acknowledges and agrees that beginning on March 30, 2024 and continuing throughout the Forbearance Period, and thereafter if any action to preserve Specified Defaults or exercise rights any other Event of Default then exists and for so long thereafter as such Specified Defaults or remedies against parties any other than Event of Default is continuing, all outstanding Current Outstanding Obligations and other Obligations shall bear interest at the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act Default Rate in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Notes and any such Interest shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementaccrue Late Charges.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant In the event that Section 2 hereof does not become effective because the conditions precedent specified in Section 6(b) hereof are not satisfied, then the undersigned Required Lenders agree that from and after the Limited Waiver Effective Date until the expiration last day of the Forbearance Waiver Period, the Participant Lenders will temporarily they shall forbear (subject to the terms hereof) from the exercise of exercising their default-related rights and remedies under the Credit AgreementsAgreement, the other Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely applicable law with respect to the extent the availability of such remedies arises exclusively from the Specified Payment Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventtermination of the Waiver Period, the agreement agreements of the Participant undersigned Required Lenders hereunder to forbear from exercising their default-related rights and remedies in respect of the Payment Defaults set forth herein shall immediately terminate automatically terminate, without the requirement of any demandnotice to any Loan Party, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower undersigned Required Lenders shall be free in their sole and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter absolute discretion to proceed to exercise any and all of their respective rights and remedies under enforce any or all of their rights and remedies set forth in the Credit Agreement, the other Loan Documents and/or and applicable law, including, without limitation, their respective rights and remedies in connection with any or all the right to demand the immediate repayment of the Defaults Advances and Events the right to immediate repayment of Default, including, without limitation, the Specified Defaultsall other Obligations in full.
(c) For the avoidance of doubt, nothing herein limits the right In furtherance of the Administrative Agent or foregoing and notwithstanding the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes occurrence of the foregoingLimited Waiver Effective Date, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights each of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender Loan Parties agrees that, notwithstanding anything subject to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant undersigned Required Lenders hereunder to forbear from exercising certain of their default-related rights and remedies with respect as and to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders extent expressly reserve set forth in this Limited Waiver, all rights and remedies that the Administrative Agent and of the Lenders now or may in the future have under any or all of the Loan Documents and/or or applicable law in connection with all Defaults respect to such Loan Party shall continue to be available to the Lenders from and Events of Default (including without limitation after the Specified Defaults)Limited Waiver Effective Date.
Appears in 1 contract
Samples: Limited Waiver (TLC Vision Corp)
Forbearance. (a) The Participant Lenders agree that until the expiration of During the Forbearance PeriodPeriod (as defined below), the Participant Lenders will temporarily Lender agrees to forbear (subject to the terms hereof) from the exercise of their default-related instituting any remedies under the Credit Agreements, Loan Documents or otherwiseprovided, against (i) Borrower pays the base rate of interest due under the Loan Agreement on a current basis, and (ii) no lender under any other credit facility under which Borrower and is obligated accelerates the Subsidiary Guarantors solely to the extent the availability maturity of such facility upon default or otherwise exercises its remedies arises exclusively from as a lender under such facility (each a “Forbearance Termination Event”). Notwithstanding the Specified Defaults; provided that the Borrower foregoing, (i) any forbearance granted by Lender shall not constitute and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions not be construed or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance interpreted to constitute a waiver of any Default or Event of Default; provided further that Default which may now or hereafter exist under the agreement Loan Documents, and (ii) this Agreement and the forbearance granted by Lender hereunder shall not constitute an amendment or modification of any of the Participant Lenders temporarily to forbear Loan Documents. All other rights of Lender contained in the Loan Documents shall not apply to nor preclude any remedy available to remain in full force and effect. Upon the Administrative Agent termination of the Forbearance Period (as defined below), or earlier, upon the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect occurrence of adequate protection or relief from any stay imposed under such law.
(b) Upon a Forbearance Termination Event, Lender shall have the agreement of the Participant Lenders hereunder right to forbear from exercising their default-related remedies shall immediately cease or terminate Lender’s forbearance hereunder, without the requirement of any further notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to replevy, protest or notice other formalities of any kind, all of which the Borrower and the Subsidiary Guarantors are hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed expressly waived by Borrower, whereupon Lender shall be entitled to exercise any and all of their respective rights and remedies available to Lender under any or all of the Loan Documents and/or applicable or at law, in equity or otherwise, including, without limitation, their respective rights institution of collection actions against the Borrower. All periods of limitation specified by statute and remedies in connection with all defenses of laches or waiver as to any Default or all Event of Default existing on the Defaults Effective Date or arising during the Forbearance Period (as defined below) will be tolled and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including otherwise suspended during the Forbearance Period. During the Forbearance Period, no payment of preferred or common dividends (“Dividends”) shall be made by Borrower to take its shareholders as long as any action to preserve Default or exercise rights or remedies against parties other than Event of Default exists, provided that the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required prohibited from paying any Dividends necessary in order to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
maintain Borrower’s tax status as a real estate investment trust (e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsREIT).
Appears in 1 contract
Samples: Forbearance Agreement (American Mortgage Acceptance Co)
Forbearance. Subject to all of the other terms and conditions set forth herein, and (a) The Participant Lenders agree that until the expiration solely with respect to any defaults or breaches arising out of the Forbearance PeriodSpecified Events, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder Holder agrees to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under the May Note and Security Agreement (it being understood that nothing herein shall constitute a waiver of any Event of Default pursuant to the May Note or all the Security Agreement) solely during the period from the date hereof until that date (the “Forbearance Termination Date”) which is the earliest to occur of (i) the failure after the date hereof of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection Company to comply with any or all of the Defaults and Events terms or undertakings of Defaultthis Agreement, including, without limitation, the covenants set forth in Section 4 hereof, (ii) a breach of any warranty or representation of the Company in this Agreement, or (iii) the occurrence of a different Event of Default (other than a default arising out of the Specified Defaults.
(cEvents) For under either the avoidance February Note or the May Note. Upon the Forbearance Termination Date, the agreement of doubtHolder to forbear from exercising its rights and remedies in respect of the Specified Events shall automatically terminate for all purposes under the May Note and Security Agreement for all periods, nothing herein limits including periods after the Forbearance Termination Date and Holder shall be free to proceed to enforce any or all of its rights and remedies set forth in the May Note or the Security Agreement including, without limitation, the right to demand the immediate repayment of the Administrative Agent or the Lenders, including during the Forbearance Period, May Note and to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes possession of the foregoing, collateral under the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its termsSecurity Agreement. Each Participant Lender The Company hereto agrees that, notwithstanding anything subject to the contrary in the Credit Agreements, the Administrative Agent shall not be required agreement of Holder to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary forbear from exercising certain of its rights and remedies as and to the terms extent expressly set forth in this Agreement, all rights and remedies of Holder under the May Note and Security Agreement shall continue to be available to Holder from and after the date of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. Bank agrees to forebear until October 31, 2001 from exercising its remedies under the Existing Loan Documents, notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to (ai) The Participant Lenders agree maintain the Adjusted Quick Ratio and (ii) increase the annual value of its contract value of subscriptions on a quarterly basis (the foregoing being referred to as "Existing Defaults") or any future breaches under the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement (as so modified, the "Loan Documents"). By signing below, the Borrower acknowledges that they are currently in default and as a result of such default, (i) effective September 1, 2001 and until the expiration earlier of Borrower being in compliance with the Existing Defaults or Bank's waiver of the Existing Defaults the Finance Charge and Collateral Handling Fee shall be increased to the default rates defined in Sections 3.2 and 3.5 and (ii) Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and as provided under applicable law. Nothing in this Agreement in any way shall constitute Bank's waiver of Borrower's Existing Defaults. A breach by Borrower of any of the terms set forth in this Agreement or the occurrence of any default (other than the Existing Defaults) under the Existing Loan Documents shall result in immediate termination of Bank's forbearance, whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any remedies available to Bank under the Existing Loan Documents and this Agreement, and under applicable law. Upon termination of the Forbearance Period described above, without any notice to Borrower, Bank may exercise any remedies available to Bank under the Loan Documents and under applicable law. In addition, Bank's agreement to continue to forbear from enforcing its remedies under the Existing Loan Documents until the end of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies notwithstanding Borrower's Existing Defaults under the Credit AgreementsExisting Loan Documents, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely (a) in no way shall be deemed an agreement by Bank to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period waive Borrower's compliance with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any other terms of the Existing Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawDocuments, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
as modified by this Loan Modification and Forbearance Agreement and (b) Upon a Termination Event, the agreement shall not limit or impair Bank's right to demand strict performance of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement all other terms and covenants as of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivedate. The Borrower and the Subsidiary Guarantors agree further agrees that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights rights or remedies allowed to Bank when an Event of Default occurs, as provided for in the Existing Loan Documents (the "Default Rights") upon termination of the Administrative Agent and the Lenders.
(d) Execution Forbearance Period shall not be affected by reason of this Agreement constitutes and the Borrower shall not assert as a direction by defense thereto the Participant Lenders passage of time, estoppel, laches or any statute of limitations to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms exercise of any Default Rights was precluded by this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Forbearance. (a) The Participant Lenders Notwithstanding the Existing Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Existing Defaults (other than as set forth in the following sentence). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders forbearance set forth in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventSection 4 below, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Existing Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Existing Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults)conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Samples: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. (a) The Participant Lenders agree that until Upon the expiration satisfaction of the Forbearance Periodconditions precedent set forth in Section 3 of this Agreement and in reliance on the representations, warranties and agreements of the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Issuers and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided herein contained, each Forbearing Holder hereby agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period it will not, directly or indirectly, take any Remedial Action with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any respect to the Notes solely as a result of the Loan Documents Excess Cash Flow Prepayment Defaults (and the Acceleration) or the Financial Covenant Defaults. The foregoing limited forbearance shall not be construed to impair the ability of the Forbearing Holders or the Trustee to take any Remedial Action (i) after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken, matters arising or payments not received during the continuance Forbearance Period or (ii) during the Forbearance Period for Defaults or Events of any Default or Event of Default; provided further that other than the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent Excess Cash Flow Prepayment Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawFinancial Covenant Defaults.
(b) Upon a Unless earlier terminated in accordance with the terms of this Agreement, the Forbearing Holders’ forbearance, as provided herein, shall immediately and automatically cease without notice upon the occurrence of any Forbearance Termination Event, and the agreement Issuers and Guarantors at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower Indenture and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, Notes (including, without limitation, their respective rights payment of any unpaid accrued interest at the Post-Default Rate) without giving effect to the forbearance set forth herein.
(c) Except for the forbearance, to the extent expressly set forth above in subsection 2(a), each Forbearing Holder reserves each and remedies in connection every right and remedy it may have under the Notes, the Indenture, the Security Documents, any agreement relating thereto and under applicable law with any or all of respect to the Excess Cash Flow Prepayment Defaults and Events of Defaultthe Financial Covenant Defaults, including, without limitation, the Specified Defaults.
right to continue to charge and accrue (c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including but not collect during the Forbearance Period, ) interest at the Post-Default Rate. Nothing herein shall be deemed to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver by any Holder of such Specified any Default or Event of Default whatsoever, whether now existing or hereafter arising (including, without limitation, the Excess Cash Flow Prepayment Defaults and that the Lenders Financial Covenant Defaults), or, except to the extent of the forbearance expressly reserve all rights and remedies that set forth herein, of any right or remedy the Administrative Agent and the Lenders now Trustee or any Holder may in the future have under the Notes, the Indenture, the Security Documents or any or all of the Loan Documents and/or agreement relating thereto and under applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)law.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Notwithstanding the Forbearance Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Forbearance Defaults (other than as set forth in the following sentence) and during the Forbearance Period, to the extent permitted by the Loan Documents, Lender shall be entitled to cure Mortgage Loan Events of Default and make any protective advances (except to the extent that Mortgage Lender is forbearing from taking action with respect to such Forbearance Defaults pursuant to a forbearance agreement acceptable to Lender). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower such forbearance set forth in Section 4 below and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during Mortgage Lender has waived the Forbearance Period with all provisions, limitations, restrictions or prohibitions Defaults that would otherwise be effective or applicable under any arise as a result of the Mortgage Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventdefaults, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Forbearance Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults)conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Samples: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. (a) 2.1 The Participant Lenders agree that until the expiration Lender Group hereby agrees, as of the Forbearance PeriodEffective Date (as defined below), to forbear from exercising any rights or remedies under Section 8.1 of the Credit Agreement with respect to the Designated Events of Default until the earliest of any of the following: (i) the date of the occurrence of a breach or default under this Agreement; (ii) the date of the occurrence of a Default or Event of Default that is not a Designated Event of Default; or (iii) January 15, 2009 (collectively, the Participant Lenders will temporarily forbear (subject “Forbearance Termination Date”).
2.2 Each Borrower and Guarantor hereby acknowledge and agree that upon the Forbearance Termination Date, the forbearance provided under this Section 2 shall terminate and the Lender Group shall have the right to exercise any and all rights and remedies under Section 8.1 of the Credit Agreement or otherwise under the Loan Documents or under applicable law or at equity due to the terms hereof) existence of the Designated Events of Default. Each Borrower and Guarantor hereby further acknowledge and agree that, from and after the exercise Forbearance Termination Date, the Lender Group shall be under no obligation of their default-related any kind whatsoever to forbear from exercising any remedies on account of the Designated Events of Default or any other Event of Default (whether similar or dissimilar to the Designated Events of Default).
2.3 The foregoing notwithstanding, if and to the extent that the Lender Group continues to make Advances or otherwise extend credit under the Credit AgreementsAgreement, Loan Documents or otherwise, against notwithstanding the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance occurrence of any Default or Event of Default; provided further that the agreement , whether specified herein or otherwise, (a) such Advances or other extension of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy credit which hereafter may be made available to Borrowers shall be made, issued, caused to be issued, or executed, as applicable, in the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawLender Group’s sole and absolute discretion, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (b) Upon no such action shall be construed as (i) a Termination Event, the agreement waiver or forbearance of any member of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without Lender Group’s rights, remedies, and powers against Borrowers, Guarantors or the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, Collateral (including, without limitation, the Specified Defaults.
(c) For right to terminate without notice the avoidance making of doubt, nothing herein limits the right of the Administrative Agent Advances or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand other extensions of credit under the Credit Agreement) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise (ii) a waiver of any such Third Party Rights Default or Event of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower Default or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Designated Events of Default (including without limitation the Specified Defaults)Default.
Appears in 1 contract
Samples: Credit Agreement (B & B B, Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder Bank agrees to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective its rights and remedies under any the Existing Loan Documents and at law ("Default Rights") until the earlier of (a) October 7, 2003, or all (b) the occurrence of a Default under this Agreement (the "Forbearance Period"), notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to comply with the Tangible Net Worth covenant set forth in Section 6.7 of the Loan Agreement, through the day of this Loan Modification and Forbearance Agreement (the foregoing being referred to as "Existing Defaults"), Hereinafter, the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement are hereinafter collectively called the "Loan Documents". By signing below, Borrower acknowledges that it is currently in default and as a result of the Existing Defaults, Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and/or and as provided under applicable law, including. The Forbearance Period shall be immediately terminated, without limitationnotice, their respective rights if (a) Borrower breaches of any of the terms set forth in this Agreement, (b) any default occurs (other than the Existing Defaults) under the Existing Loan Documents, or (c) any recital, representation or warranty made herein, in any document executed and remedies delivered in connection herewith, or in any report, certificate, financial statement or other instrument or document previously, now or hereafter furnished by or on behalf of the Borrower in connection with this Agreement or any other document executed and delivered in connection with this Agreement, shall prove to have been false, incomplete or all misleading in any material respect on the date as of which it was made (collectively, a "Default"), whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any Default Rights. Bank's agreement to forbear from enforcing its Default Rights under the Existing Loan Documents until the end of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
Forbearance Period (ca) For the avoidance of doubt, nothing herein limits the right in no way shall be deemed an agreement by Bank to waive Borrower's compliance with all other terms of the Administrative Agent Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement and (b) shall not limit or the Lenders, including during the impair Bank's right to demand strict performance of all other terms and covenants as of any date. Nothing in this Loan Modification and Forbearance Period, to take Agreement in any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes way shall constitute Bank's waiver of the foregoing, the Existing Defaults. Borrower and the Subsidiary Guarantors acknowledge and agree further agrees that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Default Rights by Bank upon termination of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Forbearance Period shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms affected by reason of this Agreement.
(e) The Borrower , and the Subsidiary Guarantors acknowledge and agree Borrower shall not assert as a defense thereto the passage of time, estoppel, laches or any statute of limitations to the extent that the agreement exercise of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Rights was precluded by this Agreement.
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Epicedge Inc)
Forbearance. Subject to, and effective as of, the Forbearance Effective Date:
(a) The Participant Lenders agree Each Holder hereby agrees that until during the expiration Forbearance Period it will not (x) take any Remedial Action with respect to the Notes in connection with the Existing Default or the Payment Default or (y) sell, pledge, hypothecate or otherwise transfer any Notes, except to (A) a purchaser or other entity who agrees in writing with the transferor (with a copy to and for the benefit of the Forbearance PeriodMxxxxx Companies) prior to such transfer to be bound by all of the terms of this Agreement with respect to the relevant Notes being transferred to such purchaser, (B) a party who is already a signatory hereto, (C) an entity that, as of the Participant Lenders will temporarily forbear date hereof, was, and as of the date of transfer, continues to be an entity that controls, is controlled by or is under common control with the transferor; provided, however, that in the case of either (B) or (C) above, such party or entity, as the case may be, shall automatically and without further action be subject to the terms hereof) of this Agreement and deemed a party hereto. This Agreement shall in no way be construed to preclude any Holder from acquiring additional Notes, to the extent permitted by applicable law. However, such Holder shall, automatically and without further action, be subject to this Agreement with respect to any Notes so acquired. The foregoing limited forbearance shall not be construed to impair the ability of the Holders or the Indenture Trustee to exercise of their default-related any rights or remedies under the Credit AgreementsIndenture or take any Remedial Action at any time after the Forbearance Period (regardless of whether or not such Remedial Action relates to actions taken or payments received during the Forbearance Period), Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsfor Defaults or Events of Default other than the Existing Default and the Payment Default, limitationsand nothing herein shall restrict, restrictions impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced Holders’ rights under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawthis Agreement.
(b) Upon a Termination EventThe Holders’ forbearance, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies as provided herein, shall immediately terminate cease on the Forbearance Termination Date without the requirement of for any demandnotice, presentment, protest demand or notice presentment of any kind, all of which the Borrower and the Subsidiary Issuers and Guarantors hereby waive. The Borrower at such time shall be obligated to comply with and perform all terms, conditions and provisions of the Indenture and the Subsidiary Guarantors agree that Notes without giving effect to the Administrative Agent forbearance set forth herein, and the Lenders Indenture Trustee and the Holders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawremedies, including, including without limitation, their respective rights and remedies in connection with the Existing Default, the Payment Default (if applicable) and any other Defaults or all of the Defaults and Events of Default, including, without limitation, Default under the Specified DefaultsIndenture or rights under this Agreement.
(c) For The Holders’ forbearance is further expressly subject to and conditioned upon the avoidance Mxxxxx Companies’ strict compliance with each and every material term and provision of doubtthis Agreement, nothing herein limits and, except with respect to the right Existing Default and the Payment Default, the Mxxxxx Companies’ strict compliance with each and every term and provision of the Administrative Agent or the LendersIndenture and Notes, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower except as such terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of provisions are modified by this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the LendersAgreement.
(d) Execution Each of this Agreement constitutes a direction the Holders acknowledges that it will request that the Indenture Trustee not take any Remedial Action, including without limitation, any action to accelerate the Notes during the Forbearance Period. In the event that the Indenture Trustee takes any action to declare all of the Notes immediately due and payable pursuant to Section 6.2 of the Indenture during the Forbearance Period solely due to the Existing Default or the Payment Default, the Holders agree, pursuant to Section 6.2 of the Indenture, to promptly rescind and cancel such acceleration; provided, however, that if the Holders rescind and cancel such acceleration by the Participant Lenders Indenture Trustee, each Holder shall defer its right to receive any cure of the Payment Default until the end of the Forbearance Period; provided, further, however, that such rescission and deferral shall be of no further force and effect to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Period with respect to this Agreement or the Specified Defaults shall not constitute a waiver period identified in Section 2 of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Waiver No. 3 has ended.
Appears in 1 contract
Samples: Forbearance Agreement (Morris Publishing Finance Co)
Forbearance. (a) The Participant Lenders Effective as of the Fifth Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Fifth Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Fifth Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Fifth Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Fifth Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) January 10, 2008; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Fifth Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Fifth Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all need for delivery of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Termination
Appears in 1 contract
Samples: Forbearance Agreement (Wornick CO)
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 1, 2020, and (ii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted, during the Forbearance Period, to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, or an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under the respective Applicable Agreements), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the respective Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Samples: Forbearance Agreement (AG Mortgage Investment Trust, Inc.)
Forbearance. (a) The Participant Lenders Effective as of the Effective Time, the Lender Parties agree that until the expiration or termination of the Forbearance Period, the Participant Lenders Period (as defined below): (i) they will temporarily each forbear (subject to the terms hereof) from the exercise exercising all of their default-related rights and remedies under against the Borrower, any other Credit Party (or any Subsidiary of a Credit Party), the Collateral or the Existing Credit Agreement, the Credit AgreementsAgreement, other Loan Documents or otherwise(as in effect both before and after giving effect to this Agreement) and applicable law, against the Borrower and the Subsidiary Guarantors in each case solely with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with (ii) all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Credit Agreement or any of the other Loan Documents during the continuance of any Default or Event of Default; provided further that , including any limitations, restrictions or prohibitions against the agreement reinvestment of the Participant Lenders temporarily to forbear shall not apply to nor preclude Net Proceeds of Dispositions or Events of Loss, the making of Restricted Payments or other payments by Borrower or any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, other Credit Party to any relief Affiliate of Borrower or any direct or indirect owner of an equity interest in respect the Borrower, any other Credit Party or any Affiliate of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies foregoing, shall immediately terminate without not, in each case solely as a result of the requirement of Specified Defaults, be in effect during the Forbearance Period. Notwithstanding the foregoing, nothing herein shall restrict, impair or otherwise affect any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective Lender Party’s rights and remedies against any Person other than the Credit Parties under any agreements (including the Intercreditor Agreement) containing subordination provisions in favor of any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights Agent and remedies in connection with Lenders (including any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than available to the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes Agent or Lenders as a result of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making occurrence or continuation of any necessary demand Specified Default) or the giving of amend or modify any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lendersprovision thereof.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. From and after the Effective Date (aas defined below) The Participant Lenders agree and through the earlier of: (i) 4:30 p.m. Eastern Daylight Time on June 26, 2020, (ii) 4:30 p.m. Eastern Daylight Time on the third business day after the occurrence of the matters set forth on Schedule 3, and (iii) the occurrence and continuance of a Triggering Event (as defined herein) (the “Forbearance Period”), each of the Participating Counterparties shall and hereby agrees to forbear from exercising any of its rights or remedies, as applicable, under its respective Applicable Agreements in respect of the Acknowledged Events of Default; provided that, without limiting and subject to the foregoing, each Participating Counterparty shall be permitted during the Forbearance Period to request, demand, or provide notice of margin, collateral or payments under the Applicable Agreements or other applicable law; provided further that until nothing contained herein will prevent a Participating Counterparty from exercising any such rights or remedies that are required by FINRA Rule 4210 as long as the expiration applicable Participating Counterparty has exercised good faith efforts to obtain a waiver of, an extension pursuant to, or to otherwise excuse compliance with, FINRA Rule 4210. Except as expressly set forth in this Agreement, nothing contained in this Agreement shall be deemed to constitute a waiver of any Acknowledged Event of Default or any other default, event of default or termination event under any of the Applicable Agreements or an amendment, supplement or modification of any term or condition of any of the Applicable Agreements. Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Participating Counterparties to forbear as set forth in this Section 1 shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall be void ab initio and immediately terminate without the requirement of any demand, presentment, protest protest, or notice of any kindkind (including any written notice of such termination or any obligation to provide notice of any default, event of default, termination event or exercise of remedies that may be required under such Applicable Agreement), all of which are hereby waived by the Borrower and the Subsidiary Guarantors hereby waiveCompanies. The Borrower Companies hereby acknowledge and agree that, upon the Subsidiary Guarantors agree termination of the Forbearance Period, the Participating Counterparties that the Administrative Agent and the Lenders are party hereto may at any time, and from time thereafter proceed to time, in their sole and absolute discretion, with respect to the Acknowledged Events of Default or any other default or event of default that may have occurred under the Applicable Agreements, exercise against any applicable Seller Entity (and its properties) any and all of their respective rights rights, remedies, powers and remedies privileges under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit such Applicable Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms applicable law and/or equity, all of this Agreement.
(e) The Borrower which rights, remedies, powers and the Subsidiary Guarantors acknowledge and agree that the agreement privileges are fully reserved by each of the Participant Lenders hereunder Participating Counterparties, and without regard to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of any grace or notice periods provided under such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or Applicable Agreements, all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)which shall be deemed to have expired.
Appears in 1 contract
Forbearance. From the Effective Date through July 31, 2015 (“Forbearance Period”), Lender hereby agrees to further forbear from enforcing the remedies available to it under the Riverside Loan Documents, the Riverside Guaranty, and the Riverside Security Agreement 2, and applicable law on the condition that:
(a) The Participant Lenders agree that until the expiration Borrower does not file, or have filed against it, any petition for bankruptcy under any chapter of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified DefaultsUnited States Bankruptcy Code; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.and
(b) Upon a Termination Event, the agreement No other creditor of Borrower: (i) executes on or garnishes any of the Participant Lenders hereunder property of Borrower; or (ii) commences any action or proceeding to forbear enforce any remedies or collect any amounts due or claimed due from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest Borrower which action or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all proceeding is not dismissed within thirty (30) days after commencement of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.same; and
(c) For Except as to the avoidance specific defaults described in the Recitals of doubtthis Agreement, nothing herein limits Borrower is not in default under the right terms of the Administrative Agent any indebtedness extended by Lender to Borrower or the Lendersobligation owed by Borrower to Lender, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower Riverside Loan Documents and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.Riverside Guaranty; and
(d) Execution Borrower performs all of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.obligations hereunder; and
(e) The No representations or warranties of Borrower prove to be false or misleading in any material respect; and
(f) On the first (1st) day of each month commencing March 1, 2015 and continuing on the Subsidiary Guarantors acknowledge first (1st) day of each month thereafter through and agree that including July 1, 2015, Borrower shall make principal and interest payments in the agreement amount of $500.00 to Lender. All payments made under this Subsection (f) shall be applied first to accrued interest, then to the unpaid principal balance of the Participant Lenders hereunder to forbear from exercising their default-related remedies Riverside Note; and
(g) Borrower is in full compliance with respect to the Specified Defaults shall not constitute a waiver terms of such Specified Defaults the Revolving Loan; and
(h) Except for the maturity date and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future payment obligations which have under any or been adjusted as provided for herein, Borrower will observe all of the other terms and conditions of the Riverside Loan Documents and/or applicable law in connection with all Defaults Documents, the Riverside Guaranty, and Events of Default (including without limitation the Specified Defaults)Riverside Security Agreement 2.
Appears in 1 contract
Samples: Forbearance Agreement (Pro Dex Inc)
Forbearance. Bank agrees to forebear until December 31, 2001 (athe Forbearance Period") The Participant Lenders agree from exercising its remedies under the Existing Loan Documents, notwithstanding Borrower's existing default under the Loan Agreement as a result of Borrower's failure to meet the Adjusted Quick Ratio for the quarter ending September 2001, (the foregoing being referred to as "Existing Defaults") or any future breaches under the Existing Loan Documents, as modified by this Loan Modification and Forbearance Agreement (as so modified, the "Loan Documents"). By signing below, Borrower acknowledges that they are currently in default and as a result of such default, Bank is entitled to exercise its remedies as provided in the Existing Loan Documents and as provided under applicable law. Nothing in this Agreement in any way shall constitute Bank's waiver of Borrower's Existing Defaults. A breach by Borrower of any of the terms set forth in this Agreement or the occurrence of any default (other than the Existing Defaults) under the Existing Loan Documents shall result in immediate termination of Bank's forbearance, whereupon Bank, at its option, without any notice to Borrower, may immediately cease making any Advances and may immediately exercise any remedies available to Bank under the Existing Loan Documents and this Agreement, and under applicable law. Upon termination of the Forbearance Period described above, without any notice to Borrower, Bank may exercise any remedies available to Bank under the Loan Documents and under applicable law. In addition, Bank's agreement to continue to forbear from enforcing its remedies under the Existing Loan Documents until the expiration end of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies notwithstanding Borrower's Existing Defaults under the Credit AgreementsExisting Loan Documents, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely (a) in no way shall be deemed an agreement by Bank to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period waive Borrower's compliance with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any other terms of the Existing Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawDocuments, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
as modified by this Loan Modification and Forbearance Agreement and (b) Upon a Termination Event, the agreement shall not limit or impair Bank's right to demand strict performance of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement all other terms and covenants as of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivedate. The Borrower and the Subsidiary Guarantors agree further agrees that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights rights or remedies allowed to Bank when an Event of Default occurs, as provided for in the Existing Loan Documents (the "Default Rights") upon termination of the Administrative Agent and the Lenders.
(d) Execution Forbearance Period shall not be affected by reason of this Agreement constitutes and the Borrower shall not assert as a direction by defense thereto the Participant Lenders passage of time, estoppel, laches or any statute of limitations to the extent that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms exercise of any Default Rights was precluded by this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Forbearance. (a) The Participant Lenders agree that Lender previously agreed to forbear from exercising any rights and remedies under the Loan Agreement and applicable law because of the Forbearance Events of Default for a limited time period, expiring November 15, 2001, on the terms set forth in the Fourteenth Amendment. By subsequent letter agreement, Lender agreed to extend such forbearance through January 31, 2003. In accordance with the terms hereof, Lender agrees that, notwithstanding the occurrence of the Forbearance Events of Default and until the expiration of the "Forbearance Period" (as hereinafter defined), the Participant Lenders Lender will temporarily forbear (from exercising any rights and remedies under the Loan Documents and applicable law and Lender will continue to make loans to Borrower in accordance with and subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any conditions of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawAgreement, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower as modified and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction amended by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The , as though the Forbearance Event of Defaults had not occurred and did not exist, provided however that in addition to and not in derogation of any of Lender's other rights under the Loan Agreement, Lender hereby specifically reserves the right to unilaterally and in Lender's sole and absolute discretion, impose additional reserves and to reduce the Eligible Inventory Sublimit and other sublimits under the Loan Agreement from time to time. As consideration for Lender's entering into this Agreement and to induce Lender to waive the effect of the Forbearance Events of Default on a temporary basis as set forth herein, Borrower acknowledges and agrees that Lender may take the actions described in the preceding sentence without approval from or notice to Borrower and even if the Subsidiary Guarantors acknowledge actions so taken by Lender would otherwise be deemed to be commercially unreasonable, economically burdensome or detrimental to Borrower. Borrower hereby consents to any such action or actions on the part of Lender and agree irrevocably waives any and all rights that the agreement Borrower possesses to object to any such action or actions. Upon termination of the Participant Lenders hereunder Forbearance Period, Lender's agreement to forbear hereunder shall be null and void and Lender shall be free to exercise its rights and remedies under the Loan Agreement and other Loan Documents and applicable law, immediately and without further notice. As used herein, the term "Forbearance Period" means the period beginning on the date hereof and continuing through December 1, 2003 or any earlier date on which Lender terminates its forbearance hereunder as provided in the following sentence. Lender may terminate its forbearance hereunder prior to December 1, 2003 and exercise its rights and remedies under the Loan Agreement, the other Loan Document and at law if it determines that any of the following events has occurred: (i) any Event of Default, other than the Forbearance Events of Default (and other than a default under any financial covenant set forth in the Loan Agreement), under the Loan Agreement or any of the other Loan Documents; (ii) a "Material Adverse Change" (as that term is hereinafter defined); or (iii) the failure of Borrower to perform, comply with and observe each and every covenant, warranty, duty and obligation of Borrower hereunder. As used herein, the term "Material Adverse Change" means any material adverse change from exercising their default-related remedies and after the date hereof in (a) the financial condition, credit, business, prospects, properties or operations of the Borrower,(b) the ability of the Borrower to perform its obligations under the Loan Agreement and the Loan Documents to which it is a party on a timely basis other than with respect to the Specified Defaults shall not constitute a waiver Forbearance Events of such Specified Defaults and that Default, or (c) the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all value of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Collateral.
Appears in 1 contract
Samples: Forbearance Agreement and Amendment to Loan and Security Agreement (Arts Way Manufacturing Co Inc)
Forbearance. During the period commencing on the Effective Date and ending on the earlier to occur of (a) The Participant 5:00 p.m. (Dallas, Texas time) on October 31, 2012; or (b) the date that any Forbearance Default (as defined in Section 9.01 hereof) occurs (the "Forbearance Period"), and subject to the other terms and conditions of this Amendment, Agent and Lenders agree that until they will forbear from exercising their rights and remedies, including, without limitation, (i) initiating judicial proceedings for the collection of the Obligations, (ii) initiating any judicial enforcement action for the foreclosure upon and sale of the Collateral; or (iii) filing or joining in any filing any involuntary petition under the Bankruptcy Code with respect to Borrowers, in respect of the Subject Events of Default; provided, however, that Agent may, but shall not be obligated to, collect the Accounts and proceeds of other Collateral and apply such collections and proceeds thereof to the Obligations and impose the Default Rate as contemplated in the Credit Agreement. Upon the expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders’ forbearance shall automatically terminate and Agent and Lenders may at any time thereafter proceed shall be entitled to exercise any and all of their respective rights and remedies under any or all of this Amendment, the Loan Credit Agreement and/or the Other Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of respect to the Defaults and Subject Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative . Borrowers agree that Agent or the Lenders, including during and Lenders shall have no obligation to extend the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all inclusion of the Loan Documents and/or applicable law in connection with all Defaults and Expected Events of Default (including without limitation to the Specified extent that they occur within the Forbearance Period) within the “Subject Defaults)” shall not imply any intention to do so. This Amendment and the forbearance contemplated by this Section 7.01 shall not be construed as establishing a custom or a course of dealing or conduct among Agent, Lenders and Borrowers.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement and Forbearance Agreement (Englobal Corp)
Forbearance. (a) The Participant Lenders agree that until 2.1. Each Credit Party specifically acknowledges the expiration potential existence and continuation of the Forbearance PeriodSpecified Defaults. In reliance on the representations, the Participant Lenders will temporarily forbear (warranties, covenants and agreements contained in this Agreement, and subject to the terms hereof) from satisfaction of each condition precedent set forth in Section 3 hereof but only so long as the exercise of their default-related remedies under Forbearance Termination Date shall not have occurred and except as permitted by this Agreement, the Credit AgreementsAdministrative Agent, Loan Documents or otherwise, against the Borrower Consenting Lenders and the Subsidiary Guarantors solely Issuing Bank hereby agree to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply forbear during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable from exercising their rights and remedies under any of the Loan Documents during and applicable law arising as a result of the occurrence or continuance of the Specified Defaults. Notwithstanding the foregoing, the forbearance granted by the Administrative Agent, the Consenting Lenders and the Issuing Bank shall not constitute, and shall not be deemed to constitute a waiver of the Specified Defaults or of any other Default or Event of Default; provided further that Default under the Loan Documents. On and after the Forbearance Termination Date, the Administrative Agent’s, the Consenting Lenders’ and the Issuing Bank’s agreement of the Participant Lenders temporarily hereunder to forbear shall not apply to nor preclude any remedy available to terminate automatically without further act or action by the Administrative Agent Agent, any Lender or Issuing Bank, and the Administrative Agent, the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Issuing Bank shall be entitled to exercise any and all of their respective rights and remedies available to them under this Agreement and the other Loan Documents, at law, in equity or otherwise without any further lapse of time, expiration of applicable grace periods or requirements of notice, all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) which are hereby expressly waived by each Credit Party. For the avoidance of doubt, nothing herein limits the right of foregoing forbearance shall not prohibit the Administrative Agent from delivering notices relating to any other Defaults, Events of Default or a Forbearance Termination Event.
2.2. Each Credit Party specifically acknowledges that (a) the Lenders, including during the Forbearance Period, conditions to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes each credit event set forth in Section 6.02 of the foregoingCredit Agreement are not able to be satisfied, (b) the Borrower Lenders have no obligation to make Loans and (c) the Subsidiary Guarantors acknowledge and agree that execution and delivery Issuing Bank has no obligation to issue, amend, renew or extend any Letter of this Agreement shall constitute Credit. Notwithstanding the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of forbearance set forth in Section 2.1, the Administrative Agent and the Lenders.
(dRequired Lenders may elect to impose the default rate of interest on all outstanding Loans pursuant to Section 3.02(c) Execution of this the Credit Agreement constitutes a direction by at any time after the Participant Lenders that the Administrative Agent act in accordance with its termsoccurence of any Specified Default or any other Event of Default. Each Participant Lender agrees Credit Party specifically acknowledges that, notwithstanding anything pursuant to the contrary in Section 3.02(c) of the Credit AgreementsAgreement, all Loans outstanding shall automatically bear interest at the Administrative Agent shall not be required to act if directed against default rate upon the Borrower occurrence and continuance of an Event of Default of the type described in Section 10.01(a), Section 10.01(b), Section 10.01(h), Section 10.01(i) or Section 10.01(j) of the Subsidiary Guarantors if such action is contrary to the terms of this Credit Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Limited Forbearance Agreement (Approach Resources Inc)
Forbearance. (a) The Participant Lenders agree that until For the expiration period beginning as of the Effective Date and ending at the earlier of (i) 5:00 p.m. (Eastern time) on February 12, 2002 (the "Expiration Date"), as such date may be extended pursuant to clause (e) below, and (ii) the date upon which a Forbearance Default (as defined below) shall occur (such period herein referred to as the "Forbearance Period"), the Participant Lenders will temporarily Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties, without waiving, curing or ceasing the continuance of the Specified Defaults, hereby agree to forbear (subject to the terms hereof) from the exercise of their default-related rights and remedies available under the Credit Agreement and the other Loan Documents on account of the Specified Defaults. Except as expressly limited herein, the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties hereby expressly reserve all of their rights and remedies under the Credit AgreementsAgreement and the other Loan Documents and under Applicable Law with respect to the Specified Defaults.
(b) The Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties hereby further agree that the Administrative Agent shall not deliver any notice to the trustee for the Refinancing Securities the effect of which would be to restrict payment of the Bond Interest Payment and to commence the "Blockage Period" provided for in the indenture for the Refinancing Securities (a "Blockage Notice") unless (i) a Material Default shall have occurred or (ii) any default or event of default by any of the Participants (as defined in the Participation Agreement referenced herein) shall have occurred under that certain Participation Agreement dated as of the Effective Date among the Incremental Term Loan Lenders and the Participants (as defined therein) (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Participation Agreement"). In the event that the Bond Interest Payment shall not have been made with the proceeds of a Term Loan Commitment Increase by 5:00 p.m. (Eastern time) on February 12, 2002, the Administrative Agent shall deliver a Blockage Notice to the trustee for the Refinancing Securities based upon the existence of the Specified Defaults and any other Events of Default occurring after the Fifth Amendment Date.
(c) The agreement by the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties to grant the forbearance herein shall be effective only with respect to the Specified Defaults and shall automatically cease to be of any force or effect, and except to the extent set forth in the foregoing clause (b), the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties shall be entitled to exercise all of their rights and remedies under the Credit Agreement and the other Loan Documents and under Applicable Law, in the event that (i) any Default or Event of Default (other than any Specified Default) shall occur or exist under the Credit Agreement or any of the other Loan Documents or otherwise(ii) any default or event of default by any of the Participants (as defined in the Participation Agreement) shall occur under the Participation Agreement (each such event referred to in the foregoing clauses (i) and (ii) being herein referred to as a "Forbearance Default").
(d) The agreement by the Lead Arranger, against the Syndication Agent, the Documentation Agent, the Administrative Agent and the Credit Parties to grant the forbearance herein shall not be construed to limit in any manner the effectiveness of any restriction or limitation set forth in the Credit Agreement and the other Loan Documents which is applicable to the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that its Subsidiaries and permits the Borrower and the Subsidiary Guarantors shall comply its Subsidiaries to engage in certain activities only during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance absence of any Default or Event of Default; provided further that , other than to the agreement extent any such activity may be expressly permitted by this Agreement. Such restrictions and limitations shall remain in full force and effect notwithstanding the existence of the Participant Lenders temporarily Forbearance Period.
(e) So long as (i) no Forbearance Default shall have occurred and (ii) the Borrower shall have made the Bond Interest Payment on or before February 12, 2002, the Expiration Date with respect to forbear the Forbearance Period shall not apply automatically extend to nor preclude 5:00 p.m. (Eastern time) on March 15, 2002, without any remedy available to further action necessary on the part of the Borrower, the Lead Arranger, the Syndication Agent, the Documentation Agent, the Administrative Agent or any of the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawCredit Parties. The parties hereto may further extend the Forbearance Period, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventbut the Lead Arranger, the agreement of Syndication Agent, the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandDocumentation Agent, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed Credit Parties shall be under no obligation to exercise any and all of their respective rights and remedies under any or all do so. Any additional extension of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Forbearance Period shall be in connection with any or all the sole discretion of the Defaults and Events of Default, including, without limitationLead Arranger, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingSyndication Agent, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of Documentation Agent, the Administrative Agent and the Credit Parties and, if granted, shall be evidenced by a written instrument executed by the Required Lenders.
(df) Execution of this Agreement constitutes a direction by clause (b) above, (i) the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent forbearance granted herein is not and shall not be required deemed to act if directed against constitute an undertaking by the Borrower or Lead Arranger, the Subsidiary Guarantors if such action is contrary to Syndication Agent, the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that Documentation Agent, the Administrative Agent and the Lenders now Credit Parties, or may in any of them, to forbear or refrain at any time from exercising any and all rights and remedies available to them under the future have under Credit Agreement or any or all of the other Loan Documents and/or applicable law in connection or under Applicable Law upon the occurrence of any Forbearance Default or the failure to comply with all Defaults any terms of this Agreement and Events (ii) it shall not seek to distrain or otherwise hinder, delay, or impair the Administrative Agent's efforts to realize upon the Collateral, or otherwise to enforce its rights and remedies pursuant to the Credit Agreement and the other Loan Documents. The provisions of Default (including without limitation this paragraph shall be specifically enforceable by the Specified Defaults)Administrative Agent.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Sixth Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Sixth Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Sixth Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Sixth Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Sixth Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) February 8, 2008; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Sixth Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Sixth Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement need for delivery of the Termination Notice or any demandother notice, presentmentand (y) this Sixth Amended Forbearance Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsection (J) below, protest without the need for delivery of the Termination Notice or notice any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the failure of any kindthe Company to provide the Noteholder Group and its financial advisors with reasonable access, all as determined by the Noteholder Group in its reasonable discretion, to its Chief Executive Officer, other senior executives and outside advisors, including representatives of which Kxxxx Zxxxx Cxxxxx that are working with the Borrower Company, and to provide the Subsidiary Guarantors hereby waive. The Borrower Noteholder Group and the Subsidiary Guarantors agree that the Administrative Agent its legal and the Lenders may at any time thereafter proceed to exercise financial advisors with any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Defaultdue diligence information they may reasonably request, including, without limitation, the Specified Defaults.
Company’s current 13-week cash flow schedule, and all updates thereto as soon as reasonably practicable after they are prepared, but in no event no later than two (c2) For business days thereafter; (B) the avoidance of doubt, nothing herein limits the right failure of the Administrative Agent Company to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction, which determination shall be made by the Noteholder Group in its reasonable discretion; (C) the failure of the Company to promptly notify the Noteholder Group of the occurrence of a Forbearance Default (as defined in the DDJ Sixth Amended Forbearance Agreement) under the DDJ Sixth Amended Forbearance Agreement or any amendment or modification to the DDJ Sixth Amended Forbearance Agreement; (D) termination of the DDJ Sixth Amended Forbearance Agreement; (E) the execution of any amendment or modification to the DDJ Sixth Amended Forbearance Agreement, which amendment or modification has a material adverse effect on the Noteholder Group as determined by the Noteholder Group in its reasonable discretion; (F) termination by the Company of the Cxxxxx Engagement Letter or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingCompany to pay Cxxxxx’x fees, the Borrower expenses and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act indemnity in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
the Cxxxxx Engagement Letter; (eG) The Borrower and the Subsidiary Guarantors acknowledge and agree occurrence of any Event of Default that is not a Specified Existing Default; (H) the agreement failure of the Participant Lenders hereunder Company to forbear from exercising their default-related remedies comply with respect any term, condition, covenant or agreement set forth in this Sixth Amended Forbearance Agreement; (I) the failure of any representation or warranty made by the Company under this Sixth Amended Forbearance Agreement to the Specified Defaults shall not constitute a waiver of such Specified Defaults be true and that the Lenders expressly reserve correct in all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all material respects as of the Loan Documents and/or applicable law in connection with all Defaults and Events date when made; (J) the commencement by or against the Company or any of Default the Subsidiaries of a case under title 11 of the United States Code; or (including without limitation K) the Specified Defaults).commencement of any action or proceeding by any creditor of the Company or any of the Subsidiaries seeking to attach or take similar action against the assets of the Company or
Appears in 1 contract
Samples: Forbearance Agreement (Wornick CO)
Forbearance. (a) The Participant Lenders agree that Notwithstanding the Existing Defaults, and subject to the provisions of this Agreement, Lender agrees that, until the expiration or earlier termination of the Forbearance Period (as defined below), Lender will forbear from exercising its rights and remedies under the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of Lender’s rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Existing Defaults (other than as set forth in the following sentence). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear Borrower Parties have satisfied the conditions to such forbearance set forth in Section 4 below (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
payment in full of the Indebtedness by Borrower (c) For including for the avoidance of doubt, nothing herein limits the Exit Fee, the Minimum Multiple Fee and if applicable, any Breakage Fees, together with any out-of-pocket attorneys’ fees and costs accrued to date)), Lender shall be deemed to have waived the Existing Defaults and shall have no right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take exercise any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Existing Defaults; provided that to the extent that any Borrower Party makes any payment(s) to Lender which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude Lender from exercising its rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Existing Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults).conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Samples: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. (a) The Participant Credit Parties have informed the Agents and the Lenders that certain Events of Default in respect of compliance with financial covenants set forth in Section 6.7 of the Credit Agreement for the applicable periods endings March 31, 2009 could occur (the “Prospective Events of Default”). Although under the Credit Agreement, upon the occurrence and continuation of any such Prospective Event of Default, (i) the Lenders would have no obligation to fund any Loans requested by the Borrower and (ii) the Administrative Agent may, and if so requested by the Requisite Lenders, the Administrative Agent must, terminate the Commitments, accelerate all of the Obligations, and exercise all of its rights and remedies under the Credit Documents and applicable law (collectively, the “Remedies”), the Credit Parties have requested the Agents and the Lenders to continue to fund Loans and forbear from exercising any Remedies and, subject to the terms and conditions set forth herein, the Agents and the Lenders are willing to continue to fund Loans and to forbear from exercising any Remedies with respect to the Prospective Events of Default during the Forbearance Period (as hereinafter defined).
(b) Notwithstanding the occurrence of the Prospective Events of Default, but subject to the conditions set forth herein, the Agents and the Lenders hereby agree that until (i) to continue to fund Loans to the expiration of Borrower during the Forbearance Period, provided that the Participant Lenders will temporarily forbear (Lenders’ agreement to continue to fund Loans is subject to the terms hereof) from the exercise conditions set forth in Section 2 and Section 3.2 of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against Agreement (other than (A) the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance absence of any Default or Event of Default to the extent such Default or Event of Default is a Prospective Event of Default; provided further that , and (B) the agreement accuracy of all representations and warranties to the extent any such representation or warranty is incorrect solely by reason of the Participant Lenders temporarily to forbear shall not apply to nor preclude occurrence and continuance of any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawProspective Event of Default), including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
and (bii) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawRemedies during the Forbearance Period, including, without limitation, their respective rights and remedies in connection but solely with respect to any or all of the Defaults and Events such Prospective Event of Default, including, without limitation, the Specified Defaults.
(c) For The forbearance granted herein (the avoidance “Forbearance”) shall commence on the Twenty-Second Amendment Effective Date (as hereinafter defined) and continue until the earlier of doubt(i) the occurrence of a Default or an Event of Default (other than any Prospective Event of Default) and (ii) May 15, nothing herein limits 2009 (the right of the Administrative Agent or the Lenders, including during the “Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"”). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution All periods of this Agreement constitutes a direction limitations specified by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything statutes and all defenses of laches or waiver as to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Prospective Events of Default (including without limitation will be tolled and otherwise suspended during the Specified Defaults)Forbearance Period.
Appears in 1 contract
Forbearance. Subject to, and effective as of, the Forbearance Effective Date:
(a) The Participant Lenders agree Each Holder hereby agrees that until during the expiration Forbearance Period it will not (x) take any Remedial Action under the Notes or the Indenture solely with respect to the Specified Default or (y) sell, pledge, hypothecate or otherwise transfer any Notes, except to (A) a purchaser or other entity who agrees in writing with the transferor (with a copy to and for the benefit of the Forbearance PeriodNote Parties) prior to such transfer to be bound by all of the terms of this Agreement with respect to the relevant Notes being transferred to such purchaser, (B) a party who is already a signatory hereto, or (C) an any entity that, as of the Participant Lenders will temporarily forbear (date hereof, was, and as of the date of transfer, continues to be an entity that controls, is controlled by or is under common control with the transferor, provided, however, that such entity shall automatically be subject to the terms hereof) of this Agreement and deemed a party hereto. This Agreement shall in no way be construed to preclude any Holder from acquiring additional Notes to the extent permitted by applicable law. However, such Holder shall, automatically and without further action, remain subject to this Agreement with respect to any Notes so acquired. The foregoing limited forbearance shall not be construed to impair the ability of the Holders or the Trustee to exercise of their default-related any rights or remedies under the Credit AgreementsIndenture or take any Remedial Action at any time after the Forbearance Period (regardless of whether or not such Remedial Action is related to actions taken or payments received during the Forbearance Period), Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsfor Defaults or Events of Default other than the Specified Default, limitationsand, restrictions except as provided herein, nothing shall restrict, impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during Holders’ rights under this Agreement, the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent Indenture or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawNotes.
(b) Upon a Termination EventUnless earlier terminated in accordance with the terms of this Agreement, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Holders’ agreements, as provided herein, shall immediately terminate without the requirement for any notice, demand or presentment of any demandkind on the Forbearance Termination Date, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower Note Parties at that time shall be obligated to comply with and perform all terms, conditions and provisions of the Indenture and the Subsidiary Guarantors agree that Notes without giving effect to the Administrative Agent forbearance set forth herein, and the Lenders Trustee and the Holders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable lawremedies, including, including without limitation, their respective rights and remedies in connection with the Specified Default and any other Defaults or all of the Defaults and Events of Default, including, without limitation, Default under the Specified DefaultsIndenture or rights under this Agreement.
(c) For The Holders hereby request that the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to Trustee not take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies Remedial Action with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and Default during the Forbearance Period. In the event that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under Trustee takes any or action to declare all of the Loan Documents and/or applicable law in connection with all Defaults Notes immediately due and Events payable pursuant to Section 6.02 of Default (including without limitation the Indenture during the Forbearance Period solely due to the Specified Defaults)Default, the Holders agree to promptly rescind and cancel such acceleration in accordance with and subject to Section 6.02 of the Indenture.
Appears in 1 contract
Forbearance. The Company and Xxxxx acknowledge the existence of the Specified Defaults, including the failure of Facility Substantial Completion and Final Completion to be achieved. Subject to the terms and conditions set forth herein, throughout the period commencing on the date of this Agreement and ending on June 29, 2011 (the “Forbearance Period”), the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent (acting at the written direction of the Administrative Lender) hereby agree to forbear from exercising any and all available default rights and remedies under the Agreement, the Notes. the Account and Security Agreement, the deeds of trust creating the Liens described in Article XI of the Account and Security Agreement, the Class B Investors Pledge Agreement and the Special Interest Investors Pledge Agreement and at applicable law as the result of the occurrence and continuance of the Specified Defaults. The Company and Xxxxx acknowledge and agree that the foregoing agreement to forbear exercising such default rights and remedies throughout the Forbearance Period shall not constitute a waiver of the Specified Defaults or a waiver of any other Credit Agreement Event of Default or Credit Agreement Default that is not waived by Section 3 of this Forbearance Agreement, and that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent expressly reserve all such default rights and remedies. The Company and Xxxxx further acknowledge and agree that the Lenders, the Administrative Lender, the Administrative Agent and the Collateral Agent may exercise any and all such default rights and remedies at any time following the earliest to occur of (a) The Participant Lenders agree that until the expiration of the Forbearance Period, (b) the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply occurrence during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any additional Credit Agreement Default or Credit Agreement Event of Default; provided further that the agreement , other than those potential Credit Agreement Defaults or Credit Agreement Events of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders Default expressly waived in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect Section 3 of adequate protection or relief from any stay imposed under such law.
this Forbearance Agreement (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, any default under this Forbearance Agreement), or (c) any of MLE, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLP”), UTC, the Company, Xxxxx or any of their respective rights and remedies in connection with Affiliates takes any or all of action against the Defaults and Events of DefaultFacility, any other collateral for the Advances (including, without limitation, the Specified Defaults.
(c) For additional collateral described in Article XI of the avoidance Account and Security Agreement), the Company or Xxxxx or any of doubtits Affiliates which the Administrative Lender believes would materially adversely affect the interests of the Lenders, nothing herein limits the right of Administrative Lender, the Administrative Agent or the Lenders, including during the Forbearance Period, to take Collateral Agent (any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingevents described in clause (a), the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand (b) or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes c), a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults“Forbearance Termination Event”).
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Second Amended Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Second Forbearance Period (as defined below), they will forbear from exercising, and shall direct the Indenture Trustee, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.5 of the Indenture, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture, the Intercreditor Agreement, the Collateral Agreements and/or applicable law solely with respect to the Specified Existing Defaults (excluding, however, the Noteholders’ right to charge default interest on the Notes (including on all unpaid interest on the Notes to the extent provided under the Indenture) during the Second Forbearance Period); provided, the Participant Lenders will temporarily forbear (subject to the terms hereof) from however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under the Credit Agreementsthis Second Amended Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear no such forbearance shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection constitute a waiver with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, respect to any relief in respect such Specified Existing Defaults or any other Events of adequate protection or relief from any stay imposed Default under such lawthe Indenture.
(b) Upon As used herein, the term “Second Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the agreement earlier to occur of (i) October 17, 2007; and (ii) two business days after the Participant Lenders hereunder delivery by the Noteholder Group to forbear from exercising their default-related remedies the Company and Lender of a written notice terminating the Second Forbearance Period (the “Termination Notice”), which notice may be delivered at any time upon or after the occurrence of any Forbearance Default (as defined below); provided, however, that notwithstanding the foregoing, (x) this Second Amended Forbearance Agreement shall immediately terminate two (2) business days after the occurrence of a Forbearance Default under subsection (D) below without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all need for delivery of the Loan Documents and/or applicable lawTermination Notice or any other notice, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(cy) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).Second Amended
Appears in 1 contract
Samples: Forbearance Agreement (Wornick CO)
Forbearance. Without limiting Sections 2 and 4 of this Agreement, Administrative Agent and Required Lenders hereby agree as of the Forbearance Effective Date to forbear from exercising any rights or remedies under the Loan Documents arising solely out of the Specified Events of Default until the date (the “from exercising any rights or remedies under the Loan Documents arising solely out of the Specified Events of Default until the date (the “Forbearance Termination Date” that is the earliest of (a) The Participant Lenders agree that until November 20, 2009, (b) the expiration occurrence of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any a Default or Event of Default (other than a Specified Event of Default; provided further that ) or (c) the agreement occurrence of a breach or default by Borrower or any other Loan Party under this Agreement (the Participant Lenders temporarily period beginning on the Forbearance Effective Date being referred to forbear herein as the “Forbearance Period”). The forbearance shall not apply to nor preclude any remedy available only to the Administrative Agent Specified Events of Default and not to any other Defaults or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawEvents of Default, including without limitation, any other existing Defaults or Events of Default known or not known to Administrative Agent and Lender or Borrower or any relief in respect other Loan Party at this time and any Defaults or Events of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault occurring after the date hereof, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and reserve all of their respective rights to exercise rights and remedies under any or all of the Loan Documents and/or applicable lawupon the occurrence of any such other Default of Event of Default at any time, including, without limitation, their respective before the expiry or termination of the Forbearance Period. The parties hereto agree that neither the agreements of Administrative Agent and the Lenders herein nor the acceptance by Administrative Agent or the Lenders of any of the payments provided for in the Loan Documents, nor any payment prior to the date hereof shall (i) excuse Borrower or any other Loan Party from any of its obligations under the Loan Documents, or (ii) toll the running of any time periods applicable to any such rights and remedies in connection with any or all of the Defaults and Events of Defaultremedies, including, without limitation, any grace periods with respect to Defaults under the Specified Defaults.
(c) For the avoidance Loan Documents or otherwise. Each of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes other Loan Parties agrees that it will not assert laches, waiver or any other defense to the enforcement of any of the foregoing, Loan Documents based upon the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery agreements of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now to forbear herein or may the acceptance by Administrative Agent or the Lenders of any of the payments provided for in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation or any payment prior to the Specified Defaults)date hereof.
Appears in 1 contract
Forbearance. (ai) The Participant Lenders agree that until In reliance upon the expiration representations, warranties and covenants of Borrowers contained in this Agreement, and subject to the terms and conditions of this Agreement and any documents or instruments executed in connection herewith, Lender Group agrees to forbear from exercising, or causing the exercise of, its rights and remedies under the Loan Documents or applicable law in respect of or arising out of (i) the Existing Defaults, (ii) a Default or Event of Default arising pursuant to Section 2.18 of the Credit Agreement, or (iii) any other Default or Event of Default (other than any of the ones described in Exhibit D attached hereto and made a part hereof (each such excluded Default or Event of Default, individually, a "Specified Default," and collectively, the "Specified Defaults")) subject to the conditions contained herein for the period (the "Forbearance Period") commencing on the date hereof and ending on the earliest to occur of: (i) May 5, 2008, or (ii) the occurrence of a Termination Event (as hereinafter defined).
(ii) Upon the termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily Lender Group to forbear shall not apply automatically and without further action terminate and be of no force and effect; it being expressly agreed that the effect of such termination will be to nor preclude permit Lender Group to exercise, or cause the exercise of, any remedy rights and remedies available to the Administrative Agent it, if any, immediately, without any further notice, passage of time or the Lenders in connection with forbearance of any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawkind.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(ciii) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms purpose of this Agreement.
, "Termination Event" shall have the meaning given to such term in that certain Side Letter Agreement dated as of February 13, 2008, as amended by a certain First Amendment to Side Letter Agreement dated as of March 19, 2008, and a certain Second Amendment to Side Letter Agreement of even date herewith by and among Borrowers, Agents and Lenders (e) The Borrower and as so amended, the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults"Side Letter Agreement").
Appears in 1 contract
Forbearance. SIR2 shall forbear from making any attempt to collect or otherwise enforce the Stipulated Judgment unless (a) The Participant Lenders agree that until Xxxx fails to provide the expiration Debtor Documents, fails to appear for the Debtor’s Exam, or otherwise is in material breach of this Agreement after failing to cure the Forbearance Periodbreach within fifteen (15) days after written notice thereof from SIR2, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon Xxxx testifies at the Debtor’s Exam in a Termination Eventmanner that indicates the Asset List did not identify any asset worth $10,000 or more, or did not identify assets worth in the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demandaggregate $20,000 or more, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance any voluntary bankruptcy or similar proceeding has commenced regarding any Defendant, or an involuntary bankruptcy or similar proceeding has commenced regarding any Defendant that has not been dismissed within 60 days of doubtits commencement (or such later date that a motion to dismiss filed within such period has been decided), nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by at the Participant Lenders Debtor’s Exam or within one (1) year thereafter (the “One Year Period”), Plaintiffs obtain evidence that the Administrative Agent act in accordance with its termsAsset List materially understated the assets of the Defendants or the value thereof. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent SIR2 shall not be required to act if directed against make any showing in order to enforce the Borrower or Stipulated Judgment. If a Defendant disputes that SIR2 is entitled to enforce the Subsidiary Guarantors if such Stipulated Judgment, it may bring an action is contrary to the terms for breach of this Agreement.
, which shall be its sole remedy; it being agreed that Defendants are not prohibited from seeking injunctive relief in any such action. By the end of the One Year Period (e) The Borrower or, if later, the date a decision is made on a motion to dismiss an involuntary bankruptcy or similar proceeding regarding any Defendant that commenced within the One Year Period), if SIR2 has not become entitled by this Agreement to attempt to collect or otherwise enforce the Stipulated Judgment, then the Stipulated Judgment shall be deemed satisfied and paid in full by agreement, and the Subsidiary Guarantors acknowledge and agree that parties shall reasonably cooperate to file such documents as may be reasonably required to implement the agreement satisfaction of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)judgment.
Appears in 1 contract
Samples: Settlement Agreement (Secured Investment Resources Fund Lp Ii)
Forbearance. (a) The Participant Lenders agree that until the expiration Effective as of the Forbearance PeriodEffective Date (as defined below), in reliance upon the Participant Lenders will temporarily forbear (representations, warranties and covenants of the Obligors contained in this Forbearance Agreement, and without waiving the Specified Defaults or any other default under the Transaction Documents or Event of Default that may now exist or which may occur hereafter, each of the Collateral Agent and the Noteholder agree that, subject to the terms hereof) from the exercise and conditions of their default-related remedies under the Credit Agreementsthis Forbearance Agreement, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors in each case solely with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply , (i) during the Forbearance Period with all provisions(as defined below), limitationsthe Noteholder will not, restrictions and will not request or prohibitions that would otherwise be effective direct the Collateral Agent to, enforce the Noteholder’s right to immediate redemption as demanded in the Specified Default EoD Redemption Notice (but, for the avoidance of doubt, the Obligations shall remain accelerated as a result of the demand for immediate redemption pursuant to the Specified Default EoD Redemption Notice) or applicable under exercise any of the Loan Documents during Collateral Agent’s or the continuance Noteholder’s other rights or remedies (including enforcement and collection actions) under the Transaction Documents, by operation of law or otherwise against the Obligors or any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to Collateral or other property owned by the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
Obligors (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights via set-off or recoupment), and remedies in connection with (ii) the Noteholder hereby directs the Collateral Agent to abstain from taking any or all of the Defaults actions described in the immediately preceding clause (i) during the Forbearance Period, and Events the Collateral Agent xxxxxx agrees that it will not take any of Defaultthe foregoing actions during the Forbearance Period. The Obligors acknowledge and agree that this Forbearance Agreement is limited to the extent specifically set forth herein and no other terms, covenants, provisions, rights or remedies under the Notes (including, without limitation, the Specified Defaults.
(c) For for the avoidance of doubt, nothing herein limits the right to Interest, Late Charges and any other amounts in accordance with the terms of the Administrative Agent or the Lenders, including Notes during the Forbearance Period) or any other Transaction Document or at law or in equity are intended to (or shall) be affected hereby, to take all of which remain in full force and effect. Each Obligor acknowledges and agrees that beginning on March 30, 2024 and continuing until and throughout the Forbearance Period, and thereafter if any action to preserve Specified Defaults or exercise rights or remedies against parties any other than the Borrower Event of Default then exists and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of so long thereafter as any such Third Party Rights Specified Defaults or any other Event of Default is continuing, all Current Outstanding Obligations and other Obligations shall bear interest at the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act Default Rate in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent Notes and any such Interest shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementaccrue Late Charges.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Borrower acknowledges and agrees that it is in Default under the Credit Agreement as a result of the Subject Defaults, (ii) the Commitments under the Credit Agreement terminate on January 31, 2015, and (iii) without this amendment of the Existing Forbearance Agreement, the Administrative Agent and the Lenders, in accordance with, and subject to, the terms of the Credit Agreement and the other Loan Documents have the right to accelerate the Loans outstanding and to make demands upon the Borrower and the Guarantors for the payment in full of the Secured Obligations as a result of the Subject Defaults.
(b) During the Forbearance Period, in reliance upon the acknowledgments and agreements of the Borrower contained in this Agreement, and subject to the terms and conditions of this Agreement, the Administrative Agent and the Lenders agree that until to forbear from exercising any of their rights and remedies under the Loan Documents and any applicable law in respect of, or arising out of, the Subject Defaults.
(c) Upon expiration or termination of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the and Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising any of their default-related rights and remedies under the Loan Documents and applicable law in respect of, or arising out of, the Subject Defaults shall immediately terminate automatically and without the requirement of any demand, presentment, protest further action or notice terminate and be of any kindno force and effect, all it being expressly agreed that the effect of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree such termination will be that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of their rights and remedies with respect to the Subject Defaults under the Loan Documents and/or and applicable lawlaw immediately, including, without limitationbut not limited to, their respective rights and remedies in connection with any or all the acceleration of the Defaults Loans in accordance with the terms of the Loan Documents and Events the taking of Defaultenforcement action against the Collateral (as defined in the applicable Security Instruments), includingin any case without any further notice, without limitationpassage of time or forbearance of any kind except as otherwise expressly required by the terms of the Loan Documents and, the Specified Defaults.
(c) unless waived, applicable law. For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of contained in this Agreement shall constitute the making of prejudice any necessary demand rights or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and or any of the Lenders now may have to exercise any rights and remedies during the Forbearance Period with respect to any Defaults or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events Event of Default (including without limitation whether now existing or hereafter occurring) other than with respect to the Specified Subject Defaults). For further avoidance of doubt, the Lenders party hereto hereby direct the Administrative Agent to act or not act, as the case may be, so as to carry out the terms and provisions hereof.
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date (as defined below), the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the Participant Lenders will temporarily forbear (subject Indenture Trustee and any broker or other Person that holds the Securities on behalf of such Noteholders, and by signature hereto so direct the Indenture Trustee pursuant to Section 6.05 of the Indenture and such brokers or other Persons, not to exercise, any rights and remedies against the Company or the Subsidiaries that are available under the Indenture and/or applicable law solely with respect to the terms hereofInterest Default (excluding, however, any right to default interest on the Notes (including on all unpaid interest on the Notes) from to the extent provided under the Indenture, during the Forbearance Period); provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of their default-related remedies the Noteholders’ rights under this Agreement, and providedfurther that no such forbearance shall constitute a waiver with respect to the Interest Defaults or any other Events of Default under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawIndenture.
(b) Upon a Termination EventWith respect to the Noteholders’ holdings of Second Lien Notes, effective as of the Forbearance Effective Date, the agreement Noteholders agree that, until the expiration of the Participant Lenders hereunder to Forbearance Period (as defined below), they will (individually and collectively) forbear from exercising their default-related remedies exercising, and shall immediately terminate without direct the requirement indenture trustee for the Second Lien Notes (the “Second Lien Indenture Trustee”) and any broker or other Person that holds the Securities (as defined in the Second Lien Indenture (as defined below)) on behalf of such Noteholders, and by signature hereto so direct the Second Lien Indenture Trustee pursuant to Section 6.05 of the Second Lien Indenture and such brokers or other Persons, not to exercise, any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies against the Company or the Subsidiaries that may become available under any or all the Second Lien Indenture and/or applicable law solely with respect to an Event of Default that may at some point come to exist under Section 6.01(6) of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies Second Lien Indenture in connection with any or all the event that the Notes are accelerated by the requisite Holders of the Defaults and Events Notes or the Indenture Trustee as a result of the Interest Default, including, without limitation, the Specified Defaults.
(c) For As used herein, the avoidance term “Forbearance Period” shall mean the period beginning on the date hereof and ending upon the occurrence of doubta Termination Event. As used herein, nothing herein limits “Termination Event” shall mean the right earlier to occur of (i) February 14, 2008; (ii) one Business Day after termination of the Administrative Agent or the Lenders, including during the Forbearance “Waiver Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).” under
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that until the expiration of During the Forbearance PeriodPeriod (as defined below), Lender will not make demand for payment under the Participant Lenders will temporarily forbear (subject to the terms hereof) from the Restated Revolving Note and/or Restated Term Note, or exercise any of their default-related its rights or remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely with respect to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
Designated Defaults (b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"as defined below). For purposes of this Agreement, "Forbearance Period" means the foregoingperiod commencing on the date hereof and ending on the earlier of: (a) September 30, 2004; (b) the Borrower occurrence of a Default hereunder; (c) the termination of the forbearance period pursuant to that certain Forbearance Agreement by and among Continental Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the Subsidiary Guarantors acknowledge "Global Forbearance Agreement"); and/or (d) either the Trustee under, or holders of 25% or more of the Series A and agree Series B Notes issued by Continental Global and administered by Norwest Bank Minnesota, Trustee under, that execution certain Indenture, dated as of April 1, 1997 (the "Indenture"), have declared the Series A and delivery of this Agreement shall constitute Series B Notes and/or any Liquidated Damages (as defined in the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting Indenture) to be due and payable; provided, however, that Lender's present willingness to so forbear and to forgo the exercise of any such Third Party Rights of Lender's rights, remedies, powers and/or privileges under the Administrative Agent Credit Documents shall only be construed as a limited, one-time forbearance. The Borrowers acknowledge and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees agree that, notwithstanding anything the foregoing: (i) except as set forth herein, Lender reserves the right to the contrary in enforce each and every term of the Credit Agreements, Documents; (ii) Lender is under no duty or obligation of any kind or any nature to grant the Administrative Agent Borrowers any additional period of forbearance beyond the Forbearance Period; (iii) Lender's actions in entering into this Agreement shall not be required construed as a waiver or relinquishment of, or estoppel to act if directed against the Borrower assert, any of Lender's rights or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement remedies under any of the Participant Lenders hereunder Credit Documents, applicable law or in equity; and (iv) Lender's actions in entering into this Agreement are without prejudice to forbear from exercising their default-related Lender's right to pursue any and all remedies with respect under the Credit Documents, pursuant to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now applicable law, or may in equity available to it in the future have under any sole discretion upon the termination (whether upon expiration thereof, upon acceleration, or all otherwise) of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)Forbearance Period.
Appears in 1 contract
Forbearance. (a) Each Holder hereby agrees that during the Forbearance Period it will not (x) take any Remedial Action with respect to the Notes in connection with the Existing Default or the Payment Default or (y) sell, pledge, hypothecate or otherwise transfer any Notes, except to a purchaser or other entity who agrees in writing with the Issuer prior to such transfer to be bound by all of the terms of this Agreement with respect to the relevant Notes being transferred to such purchaser. The Participant Lenders agree that until foregoing limited forbearance shall not be construed to impair the expiration ability of the Holders or the Trustee to take any Remedial Action after the Forbearance Period regardless of whether or not such Remedial Action relates to actions taken or payments received during the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period for Defaults or Events of Default other than the Existing Default and the Payment Default.
(b) Unless earlier terminated in accordance with the terms of this Agreement, the Holders’ forbearance, as provided herein, shall immediately cease without notice on the Forbearance Termination Date, and the Issuer and Guarantors at that time shall be obligated to comply with and perform all provisionsterms, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any conditions and provisions of the Loan Documents during Indenture and the continuance Notes without giving effect to the forbearance set forth herein.
(c) The Holders’ forbearance is further expressly subject to and conditioned upon the Issuer and Guarantors’ strict compliance with each and every term and provision of any this Agreement, and, except with respect to the Existing Default or Event and the Payment Default, the Issuer and Guarantors’ strict compliance with each and every term and provision of Default; provided further the Indenture and Notes, except as such terms and provisions are modified by this Agreement.
(d) The Holders hereby request that the agreement of the Participant Lenders temporarily to forbear shall Trustee not apply to nor preclude take any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawRemedial Action, including without limitation, any action to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, accelerate the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including Notes during the Forbearance Period, to take . In the event that the Trustee takes any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes declare all of the foregoingNotes immediately due and payable pursuant to Section 6.2(a) of the Indenture during the Forbearance Period solely due to the Existing Default or the Payment Default, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights Holders agree, pursuant to Section 6.2(b) of the Administrative Agent Indenture, to promptly rescind and cancel such acceleration; provided, however, that if the Lenders.
(d) Execution of this Agreement constitutes a direction Holders rescind and cancel such acceleration by the Participant Lenders that the Administrative Agent act Trustee in accordance with Section 6.2(b) of the Indenture, each Holder shall defer its terms. Each Participant Lender agrees thatright to receive any cure of the Payment Default until such time as set forth in the proposed Restructuring Agreement or otherwise; provided further, notwithstanding anything however, that such rescission and deferral shall be of no further force and effect to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree extent that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies “Forbearance Period” with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all either of the Loan Documents and/or applicable law in connection with all Defaults Forbearance Agreements (and Events of Default (including without limitation the Specified Defaults)as defined therein) has ended.
Appears in 1 contract
Samples: Forbearance Agreement (Vertis Inc)
Forbearance. (a) The Participant Lenders Notwithstanding the Forbearance Defaults, and subject to the provisions of this Agreement, the Lender Parties agree that that, until the expiration or earlier termination of the Forbearance Period (as defined below), the Lender Parties will forbear from exercising their rights and remedies under the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided, however, that nothing herein shall restrict, impair or otherwise affect the exercise of the Lender Parties’ rights under this Agreement; and provided, further, that no such forbearance shall constitute a waiver with respect to the Forbearance Defaults (other than as set forth in the following sentence) and during the Forbearance Period, to the extent permitted by the Loan Documents, Lender shall be entitled to cure Mortgage Loan Events of Default and make any protective advances (except to the extent that Mortgage Lender is forbearing from taking action with respect to such Forbearance Defaults pursuant to a forbearance agreement acceptable to Lender). Notwithstanding anything to the contrary contained herein, if, on or prior to the expiration (but not earlier termination) of the Forbearance Period, the Participant Lenders will temporarily forbear (subject Borrower Parties have satisfied the conditions to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower such forbearance set forth in Section 4 below and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during Mortgage Lender has waived the Forbearance Period with all provisions, limitations, restrictions or prohibitions Defaults that would otherwise be effective or applicable under any arise as a result of the Mortgage Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefaults, the agreement of Lender Parties shall be deemed to have waived the Participant Lenders hereunder to forbear from exercising their default-related remedies Forbearance Defaults and shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed have no right to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law solely with respect to the Forbearance Defaults; provided that to the extent that any Borrower Party makes any payment(s) to the Lender Parties which payment(s) or any portion thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required, in connection with all any bankruptcy, insolvency, reorganization, dissolution, liquidation or other like proceeding or for any other reason, to be repaid or paid over to a custodian, trustee, receiver or any other party under any bankruptcy act, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, the obligation or part thereof intended to be satisfied shall be revived and continue in full force and effect as if such payment(s) had not been made and the Borrower Parties shall be primarily liable for the revived obligations. The foregoing sentence shall not be construed and is not intended to preclude the Lender Parties from exercising their rights and remedies under the Loan Documents and/or applicable law with respect to the existence of the Forbearance Defaults and Events after the expiration (other than expiration after satisfaction of Default (including without limitation the Specified Defaults)conditions to forbearance as set forth above) or earlier termination of the Forbearance Period.
Appears in 1 contract
Samples: Forbearance Agreement (Trinity Place Holdings Inc.)
Forbearance. Subject to the satisfaction of the terms and conditions set forth herein, until that date (the “Forbearance Termination Date”), which is the earliest to occur of (a) The Participant Lenders agree that until 4:00 p.m. (Eastern) on the expiration one hundred twentieth day following the Effective Date (as defined herein) of this Agreement, plus an additional thirty (30) days (or sixty (60) days in the event of the execution of an LOI with a Deposit or an APA, as set forth in paragraph 3) should an Extending Event occur (as defined in the following paragraph), or (b) the consummation of a refinancing or a sale of the stock or assets of Borrowers (other than in the ordinary course), or (c) the date of the occurrence of any one or more Events of Termination (defined herein) (the “Forbearance Period”), Lenders will not exercise or enforce their rights or remedies against Borrowers which Agents or Lenders would be entitled to exercise or enforce under the terms of the Documents by reason of the occurrence or continuance of the Designated Defaults. This Agreement shall not act as a waiver of Agents or Lenders’ right to enforce any claims, rights or remedies, nor shall this Agreement act as a forbearance in the event Defaults or Events of Default (other than the Designated Defaults) occur at any time prior to the Forbearance Termination Date. Further, this forbearance shall not act as a waiver of Agents or Lenders’ right to enforce any claims, rights or remedies upon the occurrence of an Event of Termination. Nothing contained herein shall be construed as requiring the Forbearing Lenders to extend the Forbearance Termination Date, except pursuant to paragraph 3. On the Forbearance Termination Date, without notice, the Participant Obligations shall be deemed automatically accelerated and immediately due and payable in full by Borrowers (unless Agents notify Borrowers otherwise in writing) to Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Borrowers’ ability to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable borrow additional amounts under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawbe deemed terminated.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders agree that Commencing on the Agreement Effective Date, each Consenting Creditor agrees to forbear, until the expiration of date that is one day after the Forbearance PeriodPetition Date, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their defaultits rights (including any right of set-related off) or remedies it may have under the Credit AgreementsAgreement and Notes Indenture, Loan Documents as applicable, in each case, solely with respect to the Company Parties’ current or otherwiseanticipated defaults as set forth on Schedule 2 to this Agreement (the “Specified Defaults”) and on no other basis. Each Consenting Creditor further agrees that if any applicable indenture trustee, against administrative agent or collateral agent takes any action inconsistent with any such Consenting Creditor’s obligations under this Agreement, such Consenting Creditor shall direct and use commercially reasonable efforts to cause such indenture trustee, administrative agent or collateral agent to cease and refrain from taking such actions. For the Borrower avoidance of doubt, the Credit Agreement and the Subsidiary Guarantors solely Notes Indenture shall remain in full force and effect, and 19 EXECUTION VERSION are hereby ratified and confirmed, except, in each case, as expressly modified in this Section 4.03. The forbearance set forth in this Section 4.03 shall not constitute a waiver with respect to any default or event of default under the extent Credit Agreement or Notes Indenture (other than the availability Specified Defaults during the term of the Agreement Effective Period) and shall not bar any Consenting Creditor from filing a proof of claim or taking action to establish the amount of such remedies arises exclusively from claim. Upon the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any termination of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Eventthis Agreement, the agreement of the Participant Lenders hereunder Consenting Creditors to forbear from exercising their default-related rights and remedies in accordance with this Section 4.03 shall immediately terminate without the requirement of any demand, presentment, presentment or protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors Company Parties hereby waive. The Borrower Section 5. Additional Provisions Regarding the Consenting Creditors’ Commitments. Notwithstanding anything to the contrary in this Agreement, and notwithstanding any delivery of a consent or vote to accept the Plan by any Consenting Creditor, or any acceptance of the Plan by any class of creditors, nothing in this Agreement shall: (a)be construed to prohibit any Consenting Creditor from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, the Definitive Documents or the Restructuring; (b) be construed to prohibit any Consenting Creditor from appearing as a party-in-interest in any matter to be adjudicated in a Chapter 11 Case, so long as such appearance and the Subsidiary Guarantors agree that positions advocated in connection therewith are not materially inconsistent with this Agreement or the Administrative Agent Restructuring, and are not for the Lenders may at purpose of delaying, interfering, impeding, or taking any time thereafter proceed other action to exercise delay, interfere with or impede, directly or indirectly, the Restructuring; (c) affect the ability of any and all Consenting Creditor to consult with any other Consenting Creditor, the Company Parties, Ascent or any other party in interest; (d) impair or waive the rights of their respective any Consenting Creditor to assert or raise any objection not prohibited under or inconsistent with this Agreement; (e) prevent any Consenting Creditor from enforcing this Agreement and/or any of the Definitive Documents; (f) prevent any Consenting Creditor from exercising any of its rights and remedies under any or all of the Loan Documents and/or applicable lawDefinitive Documents; (g) obligate a Consenting Creditor to deliver a vote to support the Plan or prohibit a Consenting Creditor from withdrawing such vote, including, without limitation, their respective rights in each case from and remedies in connection with any or all after the Termination Date (other than a Termination Date as a result of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right occurrence of the Administrative Agent or Plan Effective Date); provided that upon the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise withdrawal of any such Third Party Rights vote after the Termination Date (other than a Termination Date as a result of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement occurrence of the Participant Lenders hereunder Plan Effective Date), such vote shall be deemed void ab initio and such Consenting Creditor shall have the opportunity to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).change its vote; 20
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascent Capital Group, Inc.)
Forbearance. (a) The Participant Lenders agree that until Subject to any rights or remedies granted to the expiration Consenting Creditors pursuant to this Agreement, the Definitive Documents, including the DIP Documents, or any order of the Forbearance Bankruptcy Court, during the Support Period, the Participant Lenders will temporarily Consenting Creditors agree to forebear from exercising (and agree to direct any agent or trustee to forbear from exercising) any rights or remedies they may have under the Prepetition Funded Debt Documents (subject whether under U.S. or non-U.S. Law) with respect to any breaches, defaults, events of default or potential defaults by the Debtors (including any such breaches, defaults, events of default, or potential defaults resulting from any maturities occurring during the Support Period). Each Consenting First Lien Lender specifically agrees that this Agreement constitutes a direction to the terms hereof) from the exercise of their default-related remedies under the Credit AgreementsFirst Lien Agent to refrain, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisionsSupport Period, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude from exercising any remedy available or power conferred to the Administrative First Lien Agent against the Debtors or any subsidiaries or any of their assets except as necessary to effectuate the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawRestructuring.
(b) Upon a Termination Event, Except to the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of extent provided or expressly contemplated under this Agreement or any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of DefaultDefinitive Documents, including, without limitation, the Specified Defaults.
DIP Documents, each Consenting Creditor further agrees that if any applicable administrative agent, collateral agent, or indenture trustee takes any action inconsistent with any such Consenting Creditor’s obligations under this Section 4.07, such Consenting Creditor shall use commercially reasonable efforts to direct and cause such administrative agent, collateral agent, or indenture trustee (cas applicable) to cease and refrain from taking such actions. For the avoidance of doubt, nothing herein limits the right foregoing forbearance shall not be construed to impair the ability of the Administrative Agent or the Lenders, including during the Forbearance Period, Consenting Creditors to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingremedial action, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary subject to the terms of this Agreement.
the Prepetition Funded Debt Documents or otherwise, as applicable, at any time from and after the Termination Date (e) The Borrower and unless the Subsidiary Guarantors acknowledge and agree that the agreement Termination Date occurs solely as a result of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all occurrence of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified DefaultsEffective Date).
Appears in 1 contract
Forbearance. Subject to the terms and conditions of this Agreement, Peak One is willing to postpone pursuing its rights and remedies under the Transaction Documents, in particular and without limitation with respect to the acceleration of the Note and immediate payment of the Default Amount (as defined in the Note), with respect to the Claimed Registration Default and the Merger Default (“Forbearance”), on the following terms:
(a) The Participant Lenders agree that until Subject to AIPT’s compliance with the expiration terms of this Agreement, the Forbearance will commence on the Effective Date and will expire at 11:59 p.m., on March 31, 2019, time being of the essence (the “Forbearance Period”), or earlier as provided herein. During the Forbearance Period, the Participant Lenders will temporarily forbear (acceleration of the Note and payment of the Default Amount shall be deemed suspended with respect to the Claimed Registration Default and Merger Default, subject to the terms hereof) from the ability of Peak One hereunder to immediately exercise of their default-related its rights and remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower this Agreement and the Subsidiary Guarantors solely Transaction Documents, including but not limited to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any acceleration of the Loan Documents during the continuance Note and enforcement of any Default or Event of Default; provided further that the agreement payment of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawDefault Amount.
(b) Upon a Termination Event, If AIPT does not receive the agreement required stockholder approval of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall Merger on or before March 31, 2019 (a “Vote Failure”), then the Forbearance Period will immediately terminate without the requirement of any demandterminate, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders Peak One may at any time thereafter proceed to immediately exercise any and all of their respective its rights and remedies provided for under any or all the Transaction Documents, including but not limited to the acceleration of the Loan Documents and/or applicable lawNote (and as amended, including, without limitation, their respective rights the Amended Note) and remedies in connection with any or all enforcement of payment of the Defaults and Events of Default, including, without limitation, the Specified DefaultsDefault Amount.
(c) For If at any time after the avoidance of doubt, nothing herein limits the right Effective Date: (i) AIPT fails to abide by any of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery conditions of this Agreement shall constitute the making Agreement; or (ii) AIPT fails to comply with any of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement any of the Participant Lenders hereunder other Transaction Documents; or (iii) AIPT fails to forbear from exercising their default-related remedies with respect timely make the payments required by under the Amended Note; or (iv) any Events of Default, in addition to the Specified Defaults shall Claimed Registration Default and Merger Default, occur, including but not constitute limited to bankruptcy proceedings that would be a waiver default under Section 3.7 of such Specified Defaults the Note (and that as amended, the Lenders expressly reserve all Amended Note), then the Forbearance Period will immediately terminate, and Peak One may immediately exercise any of its rights and remedies that provided for under the Administrative Agent and Transaction Documents, including but not limited to the Lenders now or may in the future have under any or all acceleration of the Loan Documents and/or applicable law in connection with all Defaults Note (and Events as amended, the Amended Note) and enforcement of payment of the Default (including without limitation the Specified Defaults)Amount.
Appears in 1 contract
Samples: Forbearance Agreement (Precision Therapeutics Inc.)
Forbearance. (a) The Participant Lenders agree that until the expiration of that, during the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Agreement and the other Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors Guarantors, solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply (except as otherwise expressly waived or modified under this Agreement) in all respects during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including including, without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law. The Borrower and the Guarantors acknowledge and agree that, if any Default or Event of Default other than the Specified Defaults occurs during the Forbearance Period, the Administrative Agent and the Lenders have reserved the right to, and may, exercise, at any time and from time to time, any and all rights and remedies under the Loan Documents and applicable law in connection therewith.
(b) Upon the occurrence of a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any further demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waivewaive to the fullest extent permitted by applicable law. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or and applicable law, including, without limitation, their respective rights and remedies in connection with the Specified Defaults or any or all of the other Defaults and or Events of Default, including, without limitation, . The Borrower and the Specified DefaultsGuarantors acknowledge and agree that all of the agreements and undertakings set forth herein shall remain in full force and effect and binding on them notwithstanding the occurrence of a Termination Event.
(c) The Borrower and the Guarantors understand and accept the temporary nature of the forbearance provided hereby and that the Participant Lenders have given no assurances that they will extend such forbearance or provide waivers or amendments to the Credit Agreement or any other Loan Document.
(d) Nothing in this Agreement constitutes a legal obligation to participate in the Restructuring or to execute any related documents and no such legal obligation shall arise except pursuant to mutually agreeable executed definitive documentation.
(e) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act or forbear from acting in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreement, the Administrative Agent shall not be required to act if directed against the Borrower or the Guarantors if such action is contrary to the terms of this Agreement.
(f) For the avoidance of doubt, nothing herein limits the right rights of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("“Third Party Rights"”). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(eg) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that that, except as expressly set forth in this Agreement, the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or and applicable law in connection with all Defaults and Events of Default (including including, without limitation limitation, the Specified Defaults)) or Events of Default.
Appears in 1 contract
Samples: Forbearance Agreement (Oxford Resource Partners LP)
Forbearance. Provided that each of the Credit Parties complies with all of the requirements contained in this Amendment and the Loan Documents, the Agents and Lenders shall forbear from enforcing their respective remedies with respect to the Pending Defaults for the period (athe "Forbearance Period") beginning on the date hereof and ending on the Overline Termination Date (defined below). If at any time any of the Credit Parties fails to comply with any of the requirements set forth herein or if any additional Default or Event of Default occurs under this Amendment, the Credit Agreement or the other Loan Documents, Agents and Lenders may immediately commence, proceed or otherwise continue with any or all rights and remedies available under the Loan Documents, under applicable law or otherwise (collectively, "Lenders' Remedies") without demand or notice to any Credit Party, but as among Agents and Lenders, subject to the provisions of the Credit Agreement with respect to exercising remedies. The Participant Lenders agree that until matters disclosed on Schedule 1 hereto shall not constitute additional Defaults or Events of Default during the expiration Forbearance Period. At the end of the Forbearance Period, if Borrower has not paid, in full, all amounts due and owing under the Participant Loan Documents, or otherwise cured the Pending Defaults to the full satisfaction of Agents and Lenders will temporarily forbear (in their respective sole and absolute discretion, Agents and Lenders may proceed with Lenders' Remedies without any notice or demand to any Credit Party or any other party, but as among Agents and Lenders, subject to the terms hereof) from provisions of the exercise of Credit Agreement with respect to exercising remedies. Lenders and Agents are entering into this Amendment as an accommodation to the Credit Parties and the Credit Parties remain bound to perform their default-related remedies respective obligations under the Credit AgreementsLoan Documents. The "Overline Termination Date" shall mean October 30, Loan Documents 2000, or otherwiseif earlier, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of date upon which occurs any Default or Event of Default; provided further that Default other than the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of DefaultPending Defaults, including, without limitation, the Specified DefaultsCredit Parties' failure to timely make the October Interest Payment as required in Section 3.3 below.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than the Borrower and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Forbearance. (a) The Participant Lenders Effective as of the Forbearance Effective Date, the Noteholders agree that that, until the expiration of the Forbearance PeriodPeriod (as defined below), they (both individually and collectively) will forbear from exercising, and shall direct the applicable Indenture Trustee and any broker or other Person that holds the Notes on behalf of such Noteholders, and by signature hereto so direct the applicable Indenture Trustee pursuant to Sections 502, 507 and 512 of the applicable Indenture and such brokers or other Persons, not to exercise, any rights and remedies against Holdings, the Participant Lenders will temporarily forbear (subject U.S. Issuer, the Canadian Issuer, or the Subsidiaries that are available under the applicable Indenture and/or applicable law solely with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Interest Defaults and the Subsidiary Guarantors solely Financial Reporting Defaults; provided, however, the Noteholders shall be entitled to assert a right to the accrual of default interest to the extent provided under the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply applicable Indenture during the Forbearance Period but may not seek any remedy or take any action with all provisionsrespect thereto during the Forbearance Period; provided, limitationshowever, restrictions that nothing herein shall restrict, impair or prohibitions that would otherwise be effective or applicable under any affect the exercise of the Loan Documents during Noteholders’ rights under this First Amended and Restated Agreement, and provided further that no such forbearance shall constitute a waiver with respect to any Defaults (other than the continuance Interest Defaults and Financial Reporting Defaults) or any other Events of Default under the applicable Indenture.
(b) As used herein, the term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date and ending upon the occurrence of a Termination Event. As used herein, “Termination Event” shall mean the earlier to occur of (i) January 31, 2009; and (ii) two (2) Business Days after the delivery by Paul, Weiss, as counsel to the Noteholder Group, to the applicable Issuer and the applicable Indenture Trustee a written notice terminating the Forbearance Period (the “Termination Notice”), which notice may be delivered at any time but only upon or after the occurrence of any Forbearance Default; provided, however, that notwithstanding the foregoing, this First Amended and Restated Agreement shall immediately terminate upon the occurrence of a Forbearance Default under subsections (A) and (F) below, without the need for delivery of the Termination Notice or any other notice. As used herein, the term “Forbearance Default” shall mean: (A) the valid acceleration of all indebtedness arising under (i) the U.S. Indenture, (ii) the Canadian Indenture or (iii) that certain credit agreement dated as of April 6, 2005 (as amended or modified, the “Credit Agreement”), among the Issuers, as borrowers, Holdings, as guarantor, certain lenders and The Bank of Nova Scotia, as Administrative Agent; (B) the failure of the Issuers and Holdings to engage in good faith negotiations with the Noteholder Group regarding a potential restructuring transaction which determination shall be made by the holders of a majority in principal amount of the Notes issued under the Indentures in good faith and their reasonable discretion; (C) the occurrence of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties Default other than the Borrower Interest Defaults and Financial Reporting Defaults; (D) the Subsidiary Guarantors ("Third Party Rights"). For purposes failure of the foregoingU.S. Issuer, the Borrower Canadian Issuer, Holdings or the Subsidiaries to comply with any material term, condition, covenant or agreement set forth in this First Amended and Restated Agreement; (E) the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making failure of any necessary demand representation or warranty made by the U.S. Issuer, the Canadian Issuer, Holdings or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights Subsidiaries under this First Amended and Restated Agreement to be true and correct in all material respects as of the Administrative Agent and date when made; (F) the Lenders.
commencement by or against the U.S. Issuer, the Canadian Issuer, Holdings, or any Subsidiary of a case under title 11 of the United States Code, the Companies’ Creditors Arrangement Act or any other act that seeks relief under any comparable liquidation, reorganization or insolvency regime or proceeding that is not, in the case of proceedings commenced against the U.S. Issuer, the Canadian Issuer, Holdings or the Subsidiaries, dismissed within five (d5) Execution Business Days of this Agreement constitutes a direction by commencement; or (G) the Participant Lenders that U.S. Issuer, the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatCanadian Issuer, notwithstanding anything Holdings, or the Subsidiaries pays any management, sponsor or consulting fees to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower stockholders of Masonite Holding Corp. or the Subsidiary Guarantors if such action is contrary to the terms of this Agreementtheir affiliates.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Forbearance Agreement (Masonite International Inc.)
Forbearance. 1.1 Subject to the terms and conditions set forth herein, each Forbearance Party hereby agrees, during the period from the time this Agreement becomes effective pursuant to Section 2 until 9:00 a.m. New York time on March 31, 2004 (a) The Participant Lenders agree that until such period, as it may be prematurely terminated at the expiration option of the Facility Insurer or the Agent pursuant to the terms of this Agreement, the "Forbearance Period"), to forbear temporarily from exercising its rights, on account of the Dilution Trigger Event, to declare an Amortization Commencement Date or to terminate Maxtor as Servicer under the Loan Agreement. This agreement to forbear on account of the Dilution Trigger Event as provided herein expires at the conclusion of the Forbearance PeriodPeriod and any or each Forbearance Party may, the Participant Lenders will temporarily forbear (subject at any time thereafter, exercise any of its rights and remedies with respect to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely Dilution Trigger Event to the same extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall as if this Agreement did not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawexist, including without limitation, the right to declare the occurrence of the Amortization Commencement Date, terminate Maxtor as Servicer, and exercise any remedies set forth in the Transaction Documents which are exercisable from and after the Amortization Commencement Date.
1.2 The specific agreement to forbear described in Section 1.1 above applies only to the Dilution Trigger Event and not to any relief other facts or circumstances giving rise to an Early Amortization Event or Servicer Default which may have occurred or may hereafter occur, and nothing in respect this Agreement shall be deemed to restrict any right or remedy any Forbearance Party may have on account of adequate protection any such other Early Amortization Event or relief from any stay imposed under such law.
(b) Upon a Termination EventServicer Default, including the agreement right to declare the occurrence of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may Amortization Commencement Date at any time thereafter proceed during the Forbearance Period on account of any such other Early Amortization Event or to exercise terminate the Servicer during the Forbearance Period on account of any and all such other Servicer Default. The Forbearance Parties are not hereby waiving the existence of their respective rights and remedies under any Early Amortization Event or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Servicer Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing and are merely agreeing to forbear as provided herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period. Except for the forbearance expressly set forth above in Section 1.1, to take any action to preserve or exercise rights or remedies against parties other than each Forbearance Party expressly reserves each and every right and remedy it has under the Borrower Transaction Documents and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoingunder applicable law, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of nothing in this Agreement shall be deemed to constitute the making a waiver of any necessary demand Early Amortization Event or Servicer Default whether now existing or hereafter arising, or, constitute a waiver of, or, except for the giving of forbearance expressly set forth above in Section 1.1, forbearance of, any necessary notice for purposes of preserving and/or permitting right or remedy the exercise of Forbearance Parties may have under any such Third Party Rights of the Administrative Transaction Documents or applicable law.
1.3 The Borrower acknowledges and agrees that, due to the existence of the Dilution Trigger Event, the conditions precedent to borrowing under Section 3.02(c)(ii) of the Loan Agreement are not satisfied and the Lender is not required to advance, nor is the Borrower entitled to receive, any Loans under the Loan Agreement. The Borrower hereby irrevocably agrees that it shall not seek any further Loans under the Loan Agreement and will not be entitled to receive any further Loans hereafter unless the Dilution Trigger Event has been waived by the Facility Insurer, the Agent and the Lenders.
(d) Execution Lender. The Borrower further acknowledges that, due to the existence of this Agreement constitutes a direction by the Participant Lenders that Dilution Trigger Event, the Administrative Agent act Facility Insurer is entitled to receive Default Premium and the Lender is entitled to receive Default Yield and such amounts shall be paid from the Collection Account in accordance with its terms. Section 2.05(c) of the Loan Agreement.
1.4 Each Participant of the Borrower, the Agent, the Lender agrees and the Facility Insurer hereby irrevocably directs the Trustee, Collateral Agent and Collection Account Bank, and the Trustee, Collateral Agent and Collection Account Bank hereby agree, that, notwithstanding anything to the contrary in the Credit AgreementsLoan Agreement, during the Forbearance Period, (i) the Trustee shall not release any funds in the Collection Account to the Originator or the Borrower under Section 2.05(f) of the Loan Agreement until such time as the Loans have been prepaid in full and all other amounts due and owing to the Facility Insurer, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now have been paid; (ii) on the Remittance Date to occur on or may about March 12, 2004 all funds in the future have under any or all Collection Account shall be applied in the order of priority set forth in Section 2.05(c) of the Loan Documents and/or applicable law Agreement including, pursuant to clause (vi) thereof, to the repayment of the principal amount of Loans, and (iii) on each Business Day after such Remittance Date an amount equal to (x) all funds in connection with all Defaults the Collection Account minus (y) the amounts otherwise required to be retained on deposit therein under Section 2.05(f) of the Loan Agreement in respect of accrued Yield, Premium, Non-Use Fees, Servicing Fees, Backup Standby Servicer Fees and Events Trustee Fees, shall be paid to the Lender in repayment of Default (including without limitation the Specified Defaults)principal of Loans.
Appears in 1 contract
Samples: Forbearance Agreement (Maxtor Corp)
Forbearance. (a) The Participant Lenders agree that until Subordinated Lender agrees not to ask, demand, sue for or take or receive from the expiration [Issuer][Guarantor] in cash or other property or by setoff, purchase or redemption (including, without limitation, from or by way of collateral), payment of all or any part of the Forbearance Period, the Participant Lenders will temporarily forbear (subject to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower Subordinated Obligations and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided agrees that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced involving the Borrower or the [Issuer][Guarantor] under any bankruptcy Federal or insolvency lawstate bankruptcy, including without limitationinsolvency, receivership or similar law (i) the Controlling Agent is irrevocably authorized and empowered (in its own name or in the name of the Subordinated Lender or otherwise), but shall have no obligation, to demand, sue for, collect and receive every payment or distribution referred to in the preceding sentence and give acquittance therefor and to file claims and proofs of claim after the Subordinated Lender has failed to make claims or proofs of claims in form and substance reasonably satisfactory to the Controlling Agent prior to the date which is 30 days before the relevant bar date, as the Controlling Agent may deem necessary or advisable for the exercise or enforcement of any relief of the rights or interests of the Lenders and (ii) the Subordinated Lender shall duly and promptly take such action as the Controlling Agent may request to (A) collect amounts in respect of adequate protection the Subordinated Obligations for the account of the Lenders and to file appropriate claims or relief from proofs of claim in respect of the Subordinated Obligations, (B) execute and deliver to the Controlling Agent such irrevocable powers of attorney, assignments or other instruments as the Controlling Agent may request in order to enable the Controlling Agent to enforce any stay imposed under such lawand all claims with respect to, and any security and other Liens securing payment of, the Subordinated Obligations and (C) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Obligations. A copy of these subordination provisions may be filed with any court as evidence of the Controlling Agent's power and authority hereunder.
(b) Upon a Termination EventWithout the prior written consent of the Controlling Agent, the agreement [Issuer][Guarantor] will not give, or permit to be given, and the Subordinated Lender will not receive, accept or demand, (i) any security of any nature whatsoever for any Subordinated Obligations on any property or assets, whether now existing or hereafter acquired, of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without [Issuer][Guarantor] or any Affiliate of the requirement [Issuer][Guarantor] (other than a Vencor Unrestricted Subsidiary) or (ii) any Guarantee (other than the Subordinated Guarantee), of any demandnature whatsoever, presentmentby the [Issuer][Guarantor] or any Affiliate of the [Issuer][Guarantor] (other than by a Vencor Unrestricted Subsidiary), protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified DefaultsSubordinated Obligations.
(c) For the avoidance of doubt, nothing herein limits The Subordinated Lender waives the right to compel that the Collateral or any other property of the Administrative Agent [Issuer][Guarantor] or the Lendersproperty of any Guarantor or any other Person be applied in any particular order to discharge the Senior Debt. The Subordinated Lender expressly waives the right to require the Lenders to proceed against the [Issuer][Guarantor], including during the Forbearance PeriodCollateral or any Guarantor or any other Person, or to take pursue any action other remedy in any Lender's power which the Subordinated Lender cannot pursue and which would lighten the Subordinated Lender's burden, notwithstanding that the failure of any Lender to preserve do so may thereby prejudice the Subordinated Lender. The Subordinated Lender agrees that it shall not be discharged, exonerated or exercise rights have its obligations hereunder to the Lenders reduced by any Lender's delay in proceeding against or remedies enforcing any remedy against parties the [Issuer][Guarantor], the Collateral or any Guarantor or any other than Person; by any Lender releasing the Borrower and [Issuer][Guarantor], the Subsidiary Guarantors ("Third Party Rights"). For purposes Collateral or any Guarantor or any other Person from all or any part of the foregoingSenior Debt; or by the discharge of the [Issuer][Guarantor], the Borrower and Collateral or any Guarantor or any other Person by operation of law or otherwise, with or without the Subsidiary Guarantors acknowledge and agree that execution and delivery intervention or omission of this Agreement shall constitute a Lender. Any Lender's vote to accept or reject any plan of reorganization relating to the making [Issuer][Guarantor], the Collateral, or any Guarantor or any other Person, or any Lender's receipt on account of all or part of the Senior Debt of any necessary demand cash, property, or securities distributed in any bankruptcy, reorganization, or insolvency case, shall not discharge, exonerate, or reduce the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights obligations of the Administrative Agent and Subordinated Lender hereunder to the Lenders.
(d) Execution The Subordinated Lender waives all rights and defenses arising out of this Agreement constitutes a direction an election of remedies by any Lenders, even though that election of remedies, including without limitation any nonjudicial foreclosure with respect to security for the Participant Lenders that Senior Debt, has impaired the Administrative Agent act in accordance with its termsvalue of the Subordinated Lender's rights of subrogation, reimbursement, or contribution against the [Issuer][Guarantor] or any Guarantor or any other Person. Each Participant The Subordinated Lender agrees that, notwithstanding anything expressly waives any rights or defenses it may have by reason of protection afforded to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower [Issuer][Guarantor] or the Subsidiary Guarantors if such action is contrary any Guarantor or any other Person with respect to the terms Senior Debt pursuant to any anti- deficiency laws or other laws of this Agreementsimilar import which limit or discharge the principal debtor's indebtedness upon judicial or nonjudicial foreclosure of real property or personal property Collateral for the Senior Debt.
(e) The Borrower Subordinated Lender agrees that, without the necessity of any reservation of rights against it, and without notice to or further assent by it, any demand for payment of any Senior Debt made by a Lender may be rescinded in whole or in part by the Lender, and any Senior Debt may be continued, and the Subsidiary Guarantors acknowledge and agree that Senior Debt, or the agreement liability of the Participant Lenders hereunder to forbear from exercising their default-related remedies Borrower, the [Issuer][Guarantor] or any other Guarantor or any other party upon or for any part thereof, or any Collateral or Guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, by the Specified Defaults shall not constitute a waiver of such Specified Defaults Lenders, in each case without notice to or further assent by the Subordinated Lender, which will remain bound under these subordination provisions and that without impairing, abridging, releasing or affecting the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults)subordination provided for herein.
Appears in 1 contract
Forbearance. a. Subject to Section 12(b), from March 1 until valid termination of this Agreement pursuant to Section 6 with respect to such Consenting RBL Lender, each Consenting RBL Lender severally and not jointly agrees to: (ai) The Participant Lenders agree that until not instruct the expiration Prepetition RBL Agent to exercise any rights or remedies it may have under the Prepetition RBL Credit Agreement or any other Loan Document (as defined in the Prepetition RBL Credit Agreement) (collectively, the “RBL Loan Documents”) or under applicable state, federal or foreign law or otherwise with respect to any of the Forbearance Periodalleged, existing or anticipated Defaults or Events of Default (as such terms are defined in the Participant Lenders will temporarily Prepetition RBL Credit Agreement) listed on Schedule B-1 hereto (the “Specified RBL Defaults”), (ii) if the Prepetition RBL Agent takes any action inconsistent with such Consenting RBL Lender’s obligations under this Agreement, such Consenting RBL Lender shall instruct and use commercially reasonable efforts to cause the Prepetition RBL Agent to cease and refrain from taking such actions, and (iii) waive or forbear (subject to the terms hereof) from the exercise of their default-related any rights or remedies it may have under the Credit Agreements, RBL Loan Documents or otherwiseunder applicable state, against the Borrower and the Subsidiary Guarantors solely federal or foreign law or otherwise with respect to the extent Specified RBL Defaults or any acceleration that may occur automatically without action of any party as a result of the availability operation of such remedies arises exclusively from the RBL Loan Documents, solely due to the Specified Defaults; provided that RBL Defaults (the Borrower obligations set forth in this clause (a), the “RBL Forbearance”).
b. Each Consenting RBL Lender’s obligations under the RBL Forbearance shall terminate immediately following the termination of the Term Loan Forbearance, and one (1) Business Day following the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under occurrence of any of the Loan Documents following events or circumstances and the provision of notice by such Consenting RBL Lender to the other Parties of such occurrence:
(i) this Agreement is validly terminated in accordance with Section 6 hereof as to such Consenting RBL Lender; or
(ii) other than during the continuance pendency of any Default or the Chapter 11 Cases, the occurrence and continuation of an Event of Default; provided further that Default (as such term is defined in the agreement Prepetition RBL Credit Agreement) other than the Specified RBL Defaults, unless waived pursuant to the terms of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, to any relief in respect of adequate protection or relief from any stay imposed under such lawPrepetition RBL Credit Agreement.
c. Subject to Section 12(d), from March 1 until valid termination of this Agreement pursuant to Section 6 with respect to such Consenting Term Lender, each Consenting Term Lender severally and not jointly agrees to: (bi) Upon a Termination Event, not instruct the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Prepetition Term Loan Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties it may have under the Prepetition Term Loan Credit Agreement or any other than Loan Document (as defined in the Borrower and Prepetition Term Loan Credit Agreement) (collectively, the Subsidiary Guarantors ("Third Party Rights"). For purposes “Term Loan Documents”) or under applicable state, federal or foreign law or otherwise with respect to any of the foregoingalleged, existing or anticipated Defaults or Events of Default (as such terms are defined in the Borrower Term Loan Documents) listed on Schedule B-2 hereto (the “Specified Term Loan Defaults”), (ii) if the Prepetition Term Loan Agent takes any action inconsistent with such Consenting Term Lender’s obligations under this Agreement, such Consenting Term Lender shall instruct and use commercially reasonable efforts to cause the Subsidiary Guarantors acknowledge Prepetition Term Loan Agent to cease and agree that execution refrain from taking such actions, and delivery of this Agreement shall constitute the making of any necessary demand (iii) waive or the giving of any necessary notice for purposes of preserving and/or permitting forbear from the exercise of any such Third Party Rights rights or remedies it may have under the Term Loan Documents or under applicable state, federal or foreign law or otherwise with respect to the Specified Term Loan Defaults or any acceleration that may occur automatically without action of any party as a result of the Administrative Agent operation of the Term Loan Documents, solely due to the Specified Term Loan Defaults (the obligations set forth in this clause (a), the “Term Loan Forbearance”).
d. Each Consenting Term Lender’s obligations under the Term Loan Forbearance shall terminate one (1) Business Day following the occurrence of any of the following events or circumstances and the Lendersprovision of notice by such Consenting Term Lender to the other Parties of such occurrence:
(i) this Agreement is validly terminated in accordance with Section 6 hereof as to such Consenting Term Lender; or
(ii) other than during the pendency of the Chapter 11 Cases, the occurrence and continuation of an Event of Default (as such term is defined in the Prepetition Term Loan Credit Agreement) other than the Specified Term Loan Defaults, unless waived pursuant to the terms of the Prepetition Term Loan Credit Agreement.
(d) e. The execution, delivery and effectiveness of this Agreement, including this Section 12, shall not operate as a waiver of any right, power or remedy of any Consenting Creditor under the RBL Loan Documents or Term Loan Documents, as applicable, nor constitute a waiver of any provision of the RBL Loan Documents or Term Loan Documents. On and after the Agreement Effective Time, this Agreement shall for all purposes constitute an RBL Loan Document and Term Loan Document.
f. Execution of this Agreement by the Consenting Term Lenders constitutes a direction by the Participant Consenting Term Lenders that the Administrative Agent act Prepetition Term Loan Agent, in accordance with its termsthis Agreement, act or refrain from acting. Each Participant Consenting Term Lender agrees that, notwithstanding anything to that the contrary in the Credit Agreements, the Administrative Prepetition Term Loan Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors Company if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
Appears in 1 contract
Samples: Restructuring Support Agreement (Sundance Energy Inc.)
Forbearance. The Servicer is hereby authorized to forbear in connection with its enforcement of Tax Liens, provided that the subject Property Owners comply with the individual terms and conditions of forbearance established by the Servicer in its sole discretion, but which shall include (a) The Participant Lenders agree that until the expiration repayment in full of the Forbearance PeriodAdjusted Redemptive Value of the applicable Tax Lien over a period ending no later than February 1, 2025, unless it is determined by the Servicer that an extension of the repayment period is in the best economic interest of the Issuer, but in no event shall the repayment period exceed thirty-six (36) months from the due date of the first forbearance payment, (b) payments on a periodic basis directly to the Indenture Trustee for deposit to the MTAG Issuer Lockbox, (c) the requirement that all required payments accruing subsequently to the subject Tax Lien for the subject Property that if not paid could result in the creation of a further “tax lien” (as defined in the Section 11-301 of the City Admin. Code) on such Property (the “Subsequent Taxes and Assessments”) remain current, (d) an acknowledgement of the amount due with respect to the Tax Lien that is the subject of such forbearance, a waiver of any waivable defenses to any foreclosure action and any other similar stipulations deemed necessary or desirable by the Servicer, (e) other than with respect to Properties classified by the City as within Tax Class 1, the Participant Lenders will temporarily forbear (subject Property Owner agrees to permit access to the terms hereof) from the exercise of their default-related remedies under the Credit Agreements, Loan Documents or otherwise, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance Property for purposes of any Default or Event of Default; provided further Environmental Assessment relating thereto, (f) the Property Owner agrees that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency lawforeclosure action relating to the Property, including without limitationthe holder of the related Tax Lien shall have the right to appoint a receiver, and (g) such forbearance is evidenced by a written agreement executed by each of the Servicer and the Property Owner; provided, however, that the Servicer may not agree to any relief such forbearance (in respect of adequate protection writing or relief from any stay imposed under such law.
(botherwise) Upon a Termination Event, until after the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waiveClosing Date. The Borrower details of such forbearance shall be maintained in the Servicer’s collection system. The Servicer shall provide the City and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed its representatives with access to exercise any and all of their respective rights and remedies under any or all of the Loan Documents and/or applicable law, including, without limitation, their respective rights and remedies in connection with any or all of the Defaults and Events of Default, including, without limitation, the Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including such information during the Forbearance PeriodServicer’s customary business hours, to take any action to preserve or exercise rights or remedies against parties other than at the Borrower and the Subsidiary Guarantors ("Third Party Rights")City’s request. For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery of this Agreement shall constitute the making of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction Any reasonable expenses incurred by the Participant Lenders that the Administrative Agent act Servicer in accordance with its terms. Each Participant Lender agrees that, notwithstanding anything to the contrary in the Credit Agreements, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to negotiating and monitoring the terms and conditions of this Agreementforbearance shall be considered Lien Administration Expenses.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may in the future have under any or all of the Loan Documents and/or applicable law in connection with all Defaults and Events of Default (including without limitation the Specified Defaults).
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Samples: Servicing Agreement
Forbearance. 1. For the period (the “Forbearance Period”) beginning as of the date first above written (the “Commencement Date”) and ending on the earlier to occur of (a) 5:00 p.m., New York time, on October 17, 2008, and (b) termination of this forbearance as provided herein (the “Forbearance Termination Date”), the Agent and the Lenders, without waiving, curing or ceasing the continuance of the Specified Events of Default, hereby agree to forbear from the exercise of any of their rights and remedies available under the Credit Agreement and the Loan Documents on account of the Specified Events of Default. Neither the Agent nor the Lenders shall have any obligation to make any Loans, issue, extend or renew, and the Borrower shall not request the issuance, extension or renewal of, any Letters of Credit or otherwise extend credit to the Borrower under the Credit Agreement during the Forbearance Period. The Participant Lenders agree that until the expiration of have considered and will continue to consider during the Forbearance Period, in their sole discretion, whether to honor borrowing requests or requests for issuances of Letters of Credit. Any past or future Loans to, or issuances of Letters of Credit for the Participant account of, the Borrower should not be considered an agreement, express or implied, on the part of the Lenders will temporarily forbear (subject to the make any additional Loans or to issue any additional Letters of Credit or an agreement to waive any terms hereof) from the exercise of their default-related remedies under the Credit AgreementsAgreement in the future, Loan Documents or otherwiseincluding, against the Borrower and the Subsidiary Guarantors solely to the extent the availability of such remedies arises exclusively from the Specified Defaults; provided that the Borrower and the Subsidiary Guarantors shall comply during the Forbearance Period with all provisions, limitations, restrictions or prohibitions that would otherwise be effective or applicable under any of the Loan Documents during the continuance of any Default or Event of Default; provided further that the agreement of the Participant Lenders temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or the Lenders in connection with any proceeding commenced under any bankruptcy or insolvency law, including without limitation, the satisfaction of conditions precedent to any relief in funding. The Agent’s and Lenders’ forbearance provided for herein shall be effective only with respect to the Specified Events of adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination EventDefault and shall automatically terminate and cease to be of force and effect, the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies shall immediately terminate without the requirement of any demand, presentment, protest or notice of any kind, all of which the Borrower and the Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors agree that the Administrative Agent and the Lenders may at any time thereafter proceed to exercise any and all of their respective rights and remedies as may be available under any or all of the Loan Documents and/or Credit Agreement and under applicable law, including, without limitation, their respective rights and remedies in connection with upon or after the occurrence of any other Default or all Event of Default under the Defaults and Credit Agreement or any Loan Document (other than the Specified Events of Default) or a default under the terms of this Agreement (individually a “Forbearance Default” and, including, without limitationcollectively, the Specified “Forbearance Defaults”).
(c) For the avoidance of doubt, nothing herein limits the right of the Administrative Agent or the Lenders, including during 2. During the Forbearance Period, to take any action to preserve or exercise rights or remedies against parties other than and provided that no Forbearance Default has occurred and that the Borrower terms and the Subsidiary Guarantors ("Third Party Rights"). For purposes of the foregoing, the Borrower and the Subsidiary Guarantors acknowledge and agree that execution and delivery conditions of this Agreement shall constitute are satisfied, the making Lenders agree that they will not accelerate, nor direct the Agent to accelerate, the indebtedness owed to the Lenders under the Credit Agreement or otherwise exercise any of any necessary demand or the giving of any necessary notice for purposes of preserving and/or permitting the exercise of any such Third Party Rights their rights and remedies, in each case, as a result of the Administrative Agent and the Lenders.
(d) Execution Specified Events of this Agreement constitutes a direction by the Participant Lenders that the Administrative Agent act in accordance with its terms. Each Participant Lender agrees thatDefault outlined herein; provided, notwithstanding anything to the contrary in the Credit Agreementshowever, the Administrative Agent shall not be required to act if directed against the Borrower or the Subsidiary Guarantors if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree that the agreement of the Participant Lenders hereunder to forbear from exercising their default-related remedies with respect to the Specified Defaults shall not constitute a waiver of such Specified Defaults and that the Lenders expressly reserve all rights and remedies that the Administrative Agent and the Lenders now or may reserve all rights to charge the Default Rate of interest on all outstanding Obligations in the future have under any or all accordance with Section 1.5(d) of the Loan Documents and/or applicable law in connection with all Defaults Credit Agreement from and after the date of the occurrence of the Specified Events of Default.
3. During the Forbearance Period, and provided that no Forbearance Default (including without limitation has occurred and that the Specified Defaults).terms and conditions of this Agreement are satisfied, the Agent agrees that it will neither establish any new Reserves which are not in effect on the Commencement Date nor increase any existing Reserves above the amount of such Reserves which are in effect on the Commencement Date. As of September 29, 2008 Page 3 of 13
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