Representations, Warranties and Agreements of the Issuers. (a) In order to induce the Forbearing Holders to enter into this Agreement, the Issuers hereby represent and warrant to the Forbearing Holders as follows: Each of the Issuers and the Guarantors has the power and authority to execute, deliver and perform this Agreement. Each of the Issuers and the Guarantors has taken all necessary action to authorize its execution, delivery and performance of this Agreement. No consent, approval or authorization of, or declaration or filing with, any governmental authority, and no consent of any other Person, is required in connection with any Issuer’s or Guarantor’s execution, delivery and performance of this Agreement, except for those already duly obtained. This Agreement has been duly executed and delivered by each of the Issuers and the Guarantors and constitutes the legal, valid and binding obligation of each of the Issuers and the Guarantors, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). Each of the Issuers’ and the Guarantors’ execution, delivery or performance of this Agreement does not conflict with, or constitute a violation or breach of (i) any material contract, mortgage, lease, agreement, indenture or instrument to which any of the Issuers or Guarantors is a party or which is binding upon them or any one of them or any of their properties, (ii) any law or regulation or order or decree of any court applicable to any of the Issuers or the Guarantors, or (iii) the certificate of incorporation and bylaws, or the certificate of formation and operating agreement, as applicable, of any of the Issuers or Guarantors. In addition, each of the Issuers and Guarantors hereby represent and warrant that, subject to an anticipated Excess Cash Flow Prepayment Default on November 5, 2012, no Default or Event of Default exists under the Indenture. There is no material fact presently and actually known to any Issuer or Guarantor which has not been disclosed to the Forbearing Holders which materially adversely affects or could reasonably be expected to materially adversely affect, the Collateral, the Issuers, the Guarantors or the Issuers’ or the Guarantors’ business or operations. All data and information, including any financial statements, that have been delivered to the Forbearing Holders by any Issuer or Guarantor in connection with this Agreement are true, complete and correct in all material respects and do not contain any knowingly untrue statement of material fact. (b) By its execution hereof and in consideration of the accommodations granted by the Forbearing Holders hereunder, each Issuer and Guarantor, on behalf of itself and its successors, assigns and agents, hereby acknowledges and confirms that it does not possess (and hereby forever waives, remises, releases, discharges and holds harmless the Trustee, each Forbearing Holder and their respective affiliates, stockholders, directors, officers, employees, attorneys, agents and representatives and each of their respective heirs, executors, administrators, successors and assigns (collectively, the “Indemnified Parties”) from and against, and agrees not to allege or pursue) any action, cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition, demand and other right of action whatsoever, whether in law, equity or otherwise (which it, all those claiming by, through or under it, or its successors or assigns, have or may have) against the Indemnified Parties, or any of them, by reason of, any matter, cause or thing whatsoever, with respect to events or omissions occurring or arising on or prior to the date hereof (whether based in whole or in part on facts, whether actual, contingent or otherwise, now known, unknown, or subsequently discovered) and relating to this Agreement, the Indenture, the other Note Documents and any or all of the actions and transactions contemplated hereby or thereby, including any actual or alleged performance or non-performance of any of the Indemnified Parties hereunder or under the Note Documents. Each Issuer and Guarantor hereby acknowledges that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the above-referenced releases. The provisions of this paragraph shall survive the termination or expiration of the Forbearance Period and the termination of the Note Documents, this Agreement and the payment in full of the Obligations or the foreclosure of the Collateral, as the case may be. (c) Each Issuer and Guarantor hereby confirms and acknowledges that the Security Documents and all Collateral encumbered thereby continue to secure, to the fullest extent possible, the payment of the Obligations, whether now or hereafter existing under or in respect of the Note Documents. Each Issuer and Guarantor hereby confirms, reaffirms and acknowledges (i) that the Trustee has enforceable, valid and perfected first priority Liens on and security interests in the Collateral, subject only to any Permitted Liens and (ii) subject to the terms of this Agreement, the continuing validity and effectiveness of the Forbearing Holders’ rights under the Note Documents and applicable law, including, without limitation, the right of the Trustee to recover any and all amounts owed to the Holders, free of set-off or counterclaim, by foreclosure on or redemption or other disposition of the Collateral. (d) Without limiting in any way Section 12.24 of the Indenture, the Issuers, jointly and severally, shall indemnify, defend and hold harmless each Indemnified Party from and against any and all direct, actual liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnified Party shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnified Party in any manner relating to or arising out of (i) any breach by any Issuer or Guarantor of its obligations under, or any material misrepresentation by any Issuer or Guarantor contained in, this Agreement or (ii) this Agreement or any other transaction or document contemplated hereby or thereby (collectively, the “Indemnified Liabilities”); provided, however, that the Issuers shall not have any obligation to the Indemnified Parties hereunder to the extent that such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnified Party. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Issuers shall pay the maximum portion that they are permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties. (e) Each Issuer and Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Agreement, the Forbearing Holders are not required by the terms of the Indenture or the other Note Documents to consent to the terms of this Agreement and (ii) nothing in the Note Documents or this Agreement shall be deemed to require the consent of any Guarantors to any future amendments to or modifications of or standstill or forbearance agreements with respect to the Note Documents. (f) Each Issuer and Guarantor hereby agrees that each Forbearing Holder shall receive a forbearance fee equal to one-half of one percent (0.5%), or such greater rate that any Forbearing Holder may receive, of the outstanding principal amount of the Note(s) it holds when becoming a Forbearing Holder.
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Samples: Forbearance Agreement (FriendFinder Networks Inc.), Forbearance Agreement (FriendFinder Networks Inc.)
Representations, Warranties and Agreements of the Issuers. (a) In order to induce the Forbearing Holders to enter into this Agreement, the Issuers hereby represent and warrant to the Forbearing Holders as follows: Each of the Issuers and the Guarantors has the power and authority to execute, deliver and perform this Agreement. Each of the Issuers and the Guarantors has taken all necessary action to authorize its execution, delivery and performance of this Agreement. No consent, approval or authorization of, or declaration or filing with, any governmental authority, and no consent of any other Person, is required in connection with any Issuer’s or Guarantor’s execution, delivery and performance of this Agreement, except for those already duly obtained. This Agreement has been duly executed and delivered by each of the Issuers and the Guarantors and constitutes the legal, valid and binding obligation of each of the Issuers and the Guarantors, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). Each of the Issuers’ and the Guarantors’ execution, delivery or performance of this Agreement does not conflict with, or constitute a violation or breach of (i) any material contract, mortgage, lease, agreement, indenture or instrument to which any of the Issuers or Guarantors is a party or which is binding upon them or any one of them or any of their properties, (ii) any law or regulation or order or decree of any court applicable to any of the Issuers or the Guarantors, or (iii) the certificate of incorporation and bylaws, or the certificate of formation and operating agreement, as applicable, of any of the Issuers or Guarantors. In addition, each of the Issuers and Guarantors hereby represent and warrant that, subject to an the Txxxx Xxxxxxx 0000, Xxxxxx Xxxxxxx 0000 and First Quarter 2013 Excess Cash Flow Prepayment Defaults, the anticipated Second Quarter 2013 Excess Cash Flow Prepayment Default on November 5, 2012and the anticipated Financial Covenant Defaults, no Default or Event of Default exists under the Indenture. There is no material fact presently and actually known to any Issuer or Guarantor which has not been disclosed to the Forbearing Holders which materially adversely affects or could reasonably be expected to materially adversely affect, the Collateral, the Issuers, the Guarantors or the Issuers’ or the Guarantors’ business or operations. All data and information, including any financial statements, that have been delivered to the Forbearing Holders by any Issuer or Guarantor in connection with this Agreement are true, complete and correct in all material respects and do not contain any knowingly untrue statement of material fact. Each of the Issuers and the Guarantors hereby acknowledge and agree that, as a result of the Acceleration, the Applicable Prepayment Premium is currently due and owing.
(b) By its execution hereof and in consideration of the accommodations granted by the Forbearing Holders hereunder, each Issuer and Guarantor, on behalf of itself and its successors, assigns and agents, hereby acknowledges and confirms that it does not possess (and hereby forever waives, remises, releases, discharges and holds harmless the Trustee, each Forbearing Holder and their respective affiliates, stockholders, directors, officers, employees, attorneys, agents and representatives and each of their respective heirs, executors, administrators, successors and assigns (collectively, the “Indemnified Parties”) from and against, and agrees not to allege or pursue) any action, cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition, demand and other right of action whatsoever, whether in law, equity or otherwise (which it, all those claiming by, through or under it, or its successors or assigns, have or may have) against the Indemnified Parties, or any of them, by reason of, any matter, cause or thing whatsoever, with respect to events or omissions occurring or arising on or prior to the date hereof (whether based in whole or in part on facts, whether actual, contingent or otherwise, now known, unknown, or subsequently discovered) and relating to this Agreement, the Indenture, the other Note Documents and any or all of the actions and transactions contemplated hereby or thereby, including any actual or alleged performance or non-performance of any of the Indemnified Parties hereunder or under the Note Documents. Each Issuer and Guarantor hereby acknowledges that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the above-referenced releases. The provisions of this paragraph shall survive the termination or expiration of the Forbearance Period and the termination of the Note Documents, this Agreement and the payment in full of the Obligations or the foreclosure of the Collateral, as the case may be.
(c) Each Issuer and Guarantor hereby confirms and acknowledges that the Security Documents and all Collateral encumbered thereby continue to secure, to the fullest extent possible, the payment of the Obligations, whether now or hereafter existing under or in respect of the Note Documents. Each Issuer and Guarantor hereby confirms, reaffirms and acknowledges (i) that the Trustee has enforceable, valid and perfected first priority Liens on and security interests in the Collateral, subject only to any Permitted Liens and (ii) subject to the terms of this Agreement, the continuing validity and effectiveness of the Forbearing Holders’ rights under the Note Documents and applicable law, including, without limitation, the right of the Trustee to recover any and all amounts owed to the Holders, free of set-off or counterclaim, by foreclosure on or redemption or other disposition of the Collateral.
(d) Without limiting in any way Section 12.24 of the Indenture, the Issuers, jointly and severally, shall indemnify, defend and hold harmless each Indemnified Party from and against any and all direct, actual liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnified Party shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnified Party in any manner relating to or arising out of (i) any breach by any Issuer or Guarantor of its obligations under, or any material misrepresentation by any Issuer or Guarantor contained in, this Agreement or (ii) this Agreement or any other transaction or document contemplated hereby or thereby (collectively, the “Indemnified Liabilities”); provided, however, that the Issuers shall not have any obligation to the Indemnified Parties hereunder to the extent that such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnified Party. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Issuers shall pay the maximum portion that they are permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties.
(e) Each Issuer and Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Agreement, the Forbearing Holders are not required by the terms of the Indenture or the other Note Documents to consent to the terms of this Agreement and (ii) nothing in the Note Documents or this Agreement shall be deemed to require the consent of any Guarantors to any future amendments to or modifications of or standstill or forbearance agreements with respect to the Note Documents.
(f) Each Issuer and Guarantor hereby agrees that each Forbearing Holder shall receive a forbearance fee equal to one-half of one percent (0.5%), or such greater rate that any Forbearing Holder may receive, of the outstanding principal amount of the Note(s) it holds when becoming a Forbearing Holder...
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Representations, Warranties and Agreements of the Issuers. (a) In order to induce the Forbearing Holders to enter into this Agreement, the Issuers hereby represent and warrant to the Forbearing Holders as follows: Each of the Issuers and the Guarantors has the power and authority to execute, deliver and perform this Agreement. Each of the Issuers and the Guarantors has taken all necessary action to authorize its execution, delivery and performance of this Agreement. No consent, approval or authorization of, or declaration or filing with, any governmental authority, and no consent of any other Person, is required in connection with any Issuer’s or Guarantor’s execution, delivery and performance of this Agreement, except for those already duly obtained. This Agreement has been duly executed and delivered by each of the Issuers and the Guarantors and constitutes the legal, valid and binding obligation of each of the Issuers and the Guarantors, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). Each of the Issuers’ and the Guarantors’ execution, delivery or performance of this Agreement does not conflict with, or constitute a violation or breach of (i) any material contract, mortgage, lease, agreement, indenture or instrument to which any of the Issuers or Guarantors is a party or which is binding upon them or any one of them or any of their properties, (ii) any law or regulation or order or decree of any court applicable to any of the Issuers or the Guarantors, or (iii) the certificate of incorporation and bylaws, or the certificate of formation and operating agreement, as applicable, of any of the Issuers or Guarantors. In addition, each of the Issuers and Guarantors hereby represent and warrant that, subject to an the Txxxx Xxxxxxx 0000, Xxxxxx Xxxxxxx 0000 and First Quarter 2013 Excess Cash Flow Prepayment Defaults, the anticipated Second Quarter 2013 Excess Cash Flow Prepayment Default on November 5, 2012and the anticipated Financial Covenant Defaults, no Default or Event of Default exists under the Indenture. There is no material fact presently and actually known to any Issuer or Guarantor which has not been disclosed to the Forbearing Holders which materially adversely affects or could reasonably be expected to materially adversely affect, the Collateral, the Issuers, the Guarantors or the Issuers’ or the Guarantors’ business or operations. All data and information, including any financial statements, that have been delivered to the Forbearing Holders by any Issuer or Guarantor in connection with this Agreement are true, complete and correct in all material respects and do not contain any knowingly untrue statement of material fact. Each of the Issuers and the Guarantors hereby acknowledge and agree that, as a result of the Acceleration, the Applicable Prepayment Premium is currently due and owing.
(b) By its execution hereof and in consideration of the accommodations granted by the Forbearing Holders hereunder, each Issuer and Guarantor, on behalf of itself and its successors, assigns and agents, hereby acknowledges and confirms that it does not possess (and hereby forever waives, remises, releases, discharges and holds harmless the Trustee, each Forbearing Holder and their respective affiliates, stockholders, directors, officers, employees, attorneys, agents and representatives and each of their respective heirs, executors, administrators, successors and assigns (collectively, the “Indemnified Parties”) from and against, and agrees not to allege or pursue) any action, cause of action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset, opposition, demand and other right of action whatsoever, whether in law, equity or otherwise (which it, all those claiming by, through or under it, or its successors or assigns, have or may have) against the Indemnified Parties, or any of them, by reason of, any matter, cause or thing whatsoever, with respect to events or omissions occurring or arising on or prior to the date hereof (whether based in whole or in part on facts, whether actual, contingent or otherwise, now known, unknown, or subsequently discovered) and relating to this Agreement, the Indenture, the other Note Documents and any or all of the actions and transactions contemplated hereby or thereby, including any actual or alleged performance or non-performance of any of the Indemnified Parties hereunder or under the Note Documents. Each Issuer and Guarantor hereby acknowledges that the agreements in this paragraph are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the above-referenced releases. The provisions of this paragraph shall survive the termination or expiration of the Forbearance Period and the termination of the Note Documents, this Agreement and the payment in full of the Obligations or the foreclosure of the Collateral, as the case may be.
(c) Each Issuer and Guarantor hereby confirms and acknowledges that the Security Documents and all Collateral encumbered thereby continue to secure, to the fullest extent possible, the payment of the Obligations, whether now or hereafter existing under or in respect of the Note Documents. Each Issuer and Guarantor hereby confirms, reaffirms and acknowledges (i) that the Trustee has enforceable, valid and perfected first priority Liens on and security interests in the Collateral, subject only to any Permitted Liens and (ii) subject to the terms of this Agreement, the continuing validity and effectiveness of the Forbearing Holders’ rights under the Note Documents and applicable law, including, without limitation, the right of the Trustee to recover any and all amounts owed to the Holders, free of set-off or counterclaim, by foreclosure on or redemption or other disposition of the Collateral.
(d) Without limiting in any way Section 12.24 of the Indenture, the Issuers, jointly and severally, shall indemnify, defend and hold harmless each Indemnified Party from and against any and all direct, actual liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for such Indemnified Party in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnified Party shall be designated a party thereto), that may be imposed on, incurred by, or asserted against such Indemnified Party in any manner relating to or arising out of (i) any breach by any Issuer or Guarantor of its obligations under, or any material misrepresentation by any Issuer or Guarantor contained in, this Agreement or (ii) this Agreement or any other transaction or document contemplated hereby or thereby (collectively, the “Indemnified Liabilities”); provided, however, that the Issuers shall not have any obligation to the Indemnified Parties hereunder to the extent that such Indemnified Liabilities arise from the gross negligence or willful misconduct of such Indemnified Party. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, the Issuers shall pay the maximum portion that they are permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Indemnified Parties.
(e) Each Issuer and Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Agreement, the Forbearing Holders are not required by the terms of the Indenture or the other Note Documents to consent to the terms of this Agreement and (ii) nothing in the Note Documents or this Agreement shall be deemed to require the consent of any Guarantors to any future amendments to or modifications of or standstill or forbearance agreements with respect to the Note Documents.
(f) Each Issuer and Guarantor hereby agrees that each Forbearing Holder shall receive a forbearance fee equal to one-half of one percent (0.5%), or such greater rate that any Forbearing Holder may receive, of the outstanding principal amount of the Note(s) it holds when becoming a Forbearing Holder.
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