Common use of Forbearance Default Clause in Contracts

Forbearance Default. Nothing set forth herein or contemplated hereby (a) is intended to or shall be construed as a waiver of or acquiescence to any Specified Default, which shall continue in existence subject only to the terms of the Forbearance, or (b) shall constitute an agreement by the Lenders to forbear the exercise of any of the rights and remedies available to the Lenders under the Credit Agreement and the other Loan Documents (all of which rights and remedies are hereby expressly reserved by the Lenders) upon and after the occurrence of a Forbearance Default. For purposes hereof, the term “Forbearance Default” shall mean the existence of any or all of the following: (a) any Event of Default (including for the avoidance of doubt any payment default) under the Credit Agreement other than the Specified Defaults, (b) on or prior to June 10, 2008, the Borrower shall not have entered into binding definitive agreements with respect to each of the Atlantic City Sale, the Evansville Sale and/or the Vicksburg Horizon Sale (as defined in Amendment No. 1) that are reasonably anticipated (as determined in good faith by an independent financial advisor) to produce aggregate Net Cash Proceeds in an amount equal to the aggregate principal amount of all amounts outstanding under the Credit Agreement (including Term Loans, Revolving Loans, if any, and amounts due under Hedging Agreements), minus 10.0% of the aggregate principal amount of Term Loans and Revolving Loans outstanding as of such date, unless prior to such date, the Borrower shall have completed an Equity Issuance to Holdings, the Net Cash Proceeds of which are sufficient to fund the interest payment with respect to the Subordinated Notes payable on June 15, 2008, and the Borrower subsequently applies such Net Cash Proceeds to such payment (it being understood and agreed that Section 2.13(c) of the Credit Agreement shall not apply to such Net Cash Proceeds) and (c) a breach by the Loan Parties of any term of this Agreement; provided that, in the case of a breach of Sections 4(f) and (h), such breach shall continue unremedied for a period of 15 days. The Lenders shall be free to exercise any or all of their rights and remedies arising on account of any Event of Default under the Credit Agreement or any other Loan Document upon the Forbearance Termination Date.

Forbearance Default. Nothing set forth herein or contemplated hereby Each of the following shall constitute a “Forbearance Default”: (a) is intended failure of the ▇▇▇▇ Entities to make a payment, when due, against the Outstanding Balance as required by this Agreement or the ▇▇▇▇ Entities Guaranty, and such failure remains uncured for two (2) Business Days after notice thereof to ▇▇▇▇ from Lender; provided, however, that upon tender by or on behalf of the ▇▇▇▇ Entities of such overdue payment within five (5) Business Days following the date of such notice, accompanied by a late payment fee equal to 10% (ten percent) of the amount of such overdue payment, Lender shall accept such overdue payment and late payment fee, and the Forbearance Default pursuant to this paragraph (a) with respect to that specific overdue payment shall be construed as a waiver of or acquiescence deemed to any Specified Default, which shall continue in existence subject only to the terms of the Forbearance, or have been cured; (b) shall constitute an agreement by the Lenders to forbear the exercise failure of any of the rights Soupman Entities to perform any of its agreements and remedies available covenants set forth in this Agreement, the ▇▇▇▇ Entities Guaranty, the Keepwell Agreement, the Escrow Agreement or any of the documents or instruments contemplated hereby or thereby (other than as provided in paragraph (a) of this Section 8), and such failure shall continue for seven (7) Business Days after written notice from Lender; (c) any of the representations and warranties of any of the Soupman Entities shall have been false or misleading as of the date made or deemed made; (d) if, at any time, Lender shall fail to have a perfected first priority lien on and security interest in all of the assets of the ▇▇▇▇ Entities to the Lenders under the Credit extent required by this Agreement and the ▇▇▇▇ Entities Guaranty; (e) a Change in Control of Soupman shall occur; (f) any of the Soupman Entities shall commence any bankruptcy, reorganization, debt arrangement or other Loan Documents case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding, or any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any state or federal bankruptcy or insolvency law or any dissolution or liquidation proceeding, is involuntarily commenced against or in respect of any of the Soupman Entities and such proceeding shall continue undismissed or unstayed for sixty (all 60) days after the commencement thereof, or a trustee, receiver, or other custodian is appointed for any of which rights and remedies are hereby expressly reserved the Soupman Entities or over a material portion of the assets of any of the Soupman Entities; (g) any judgment, decision or recovery shall be obtained by the Lenders) upon and after the occurrence trustee of a Forbearance Default. For purposes hereof, the term “Forbearance Default” shall mean the existence SKII’s bankruptcy estate in respect of any or all of the following: assets of the Soupman Entities that adversely affects Lender’s rights hereunder in any material respect; (ah) any Event of Default Soupman shall fail to comply on a timely basis with its obligations pursuant to the Act or the Exchange Act; or (including for the avoidance of doubt any payment defaulti) under the Credit Agreement other than the Specified Defaults, If (bi) on or prior to June 10, 2008, the Borrower Kiosk shall not have entered into binding definitive agreements with respect to each been reinstated under the BCL by September 30, 2011, (ii) upon reinstatement, Kiosk shall not have executed the Joinder within seven (7) Business Days following receipt of notice of the Atlantic City Sale, the Evansville Sale and/or the Vicksburg Horizon Sale (as defined in Amendment No. 1) that are reasonably anticipated (as determined in good faith by an independent financial advisor) to produce aggregate Net Cash Proceeds in an amount equal to the aggregate principal amount of all amounts outstanding under the Credit Agreement (including Term Loans, Revolving Loans, if any, and amounts due under Hedging Agreements), minus 10.0% of the aggregate principal amount of Term Loans and Revolving Loans outstanding as effectiveness of such date, unless prior to reinstatement but in any event within not more than twenty (20) calendar days following the effectiveness of such date, reinstatement; or (iii) the Borrower Soupman Entities shall have completed an Equity Issuance to Holdings, otherwise default in the Net Cash Proceeds performance of which are sufficient to fund the interest payment with respect to the Subordinated Notes payable on June 15, 2008, and the Borrower subsequently applies such Net Cash Proceeds to such payment their obligations (it being understood and agreed that Section 2.13(cother than as set forth in clauses (i) or (ii) of the Credit Agreement shall not apply to such Net Cash Proceedsthis paragraph (i)) and (cunder Section 2(b) a breach by the Loan Parties of any term of this Agreement; provided that, in the case of a breach of Sections 4(f) and (h), such breach default shall continue unremedied for a period of 15 days. The Lenders shall be free five (5) Business Days after written notice thereof from Lender to exercise any or all of their rights and remedies arising on account of any Event of Default under the Credit Agreement or any other Loan Document upon the Forbearance Termination Date▇▇▇▇.

Forbearance Default. Nothing set forth herein A Forbearance Default shall occur, immediately and without notice, if one or contemplated hereby (a) is intended to or shall be construed as a waiver of or acquiescence to any Specified Default, which shall continue in existence subject only to the terms more of the Forbearancefollowing shall occur: i. the occurrence of any Default or Event of Default other than the Current Events of Default (without taking into account any grace or cure periods); ii. any creditor of any Party (other than WayPoint), or any of such creditor’s assignees, agents or designees, including, without limitation, PNC Bank, National Association (“PNC”) pursuant to its senior revolving credit and term loan facility (the “Senior Facility”), commences any enforcement action, exercises or seeks to exercise any of its or their respective rights or remedies or takes or seeks to take any action that renders compliance by NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF with this Forbearance Agreement impossible, or that otherwise materially impairs or materially adversely affects WayPoint’s ability to exercise its rights or remedies; iii. the failure by NYTEX Holdings to, no later than 35 days after the Forbearance Effective Date, either (x) identify a lead investor in connection with a proposed recapitalization of NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF that would, among other things, fund the purchase of the WayPoint Securities contemplated by Sections 3(a)(xiv) and 3(a)(xv) hereof, or (by) shall constitute an agreement provide WayPoint with evidence of progress toward such a proposed recapitalization that is satisfactory to WayPoint in its sole discretion; iv. the commencement by one or more of NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF of a case under title 11 of the Lenders to forbear United States Code or any other act that seeks relief under any comparable bankruptcy or insolvency regime proceeding, or the exercise commencement against one or more of NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF of any such case or proceeding; v. the failure of any of the rights NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and remedies available FDF to the Lenders under the Credit Agreement and the other Loan Documents timely comply with any term, condition or covenant set forth in this Forbearance Agreement; vi. no later than one (all of which rights and remedies are hereby expressly reserved by the Lenders1) upon and Business Day after the occurrence of a Forbearance Default. For purposes hereofEffective Date, the term “Forbearance Default” FDF shall mean the existence of any or all pay not less than $100,000.00 of the following: (a) any Event reasonable out-of-pocket fees, costs and expenses incurred by WayPoint both on behalf of itself in connection with the Current Events of Default (and on behalf of NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF, including for the avoidance reasonable fees, disbursements and other charges of doubt any payment default) under the Credit Agreement other than the Specified Defaultstheir counsel, (b) on or prior consultants and advisors to June 10, 2008, the Borrower shall not have entered into binding definitive agreements with respect to each of the Atlantic City Sale, the Evansville Sale and/or the Vicksburg Horizon Sale (as defined in Amendment No. 1) that are reasonably anticipated (as determined in good faith by an independent financial advisor) to produce aggregate Net Cash Proceeds in an amount equal to the aggregate principal amount of all amounts outstanding under the Credit Agreement (including Term Loans, Revolving Loans, if any, and amounts due under Hedging Agreements), minus 10.0% of the aggregate principal amount of Term Loans and Revolving Loans outstanding as of such date, unless prior to such date, the Borrower shall have completed an Equity Issuance to Holdings, the Net Cash Proceeds of which are sufficient to fund the interest payment with respect to the Subordinated Notes payable on June 15, 2008, and the Borrower subsequently applies remaining amount of such Net Cash Proceeds fees, costs and expenses to such payment be paid no later than 14 days after the Forbearance Effective Date; vii. any change in the members of the Board of Directors of and NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF; viii. the failure of the NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF to retain no later than three (3) Business Days after the Forbearance Effective Date a Business Improvement Officer or financial and operational consultant with executive officer authority (the “BIO”) and related personnel reasonably acceptable to WayPoint (it being understood that firm for such personnel will be PriceWaterhouseCoopers LLP and agreed that Section 2.13(c▇▇▇▇▇ ▇. ▇▇▇▇ from that firm as BIO is acceptable to all Parties) pursuant to a scope of engagement and otherwise on terms and conditions (in each case) reasonably acceptable to NYTEX Acquisition, New ▇▇▇▇▇▇▇, FDF and WayPoint, and WayPoint and its representatives shall be granted direct, regular access to the BIO and all reasonably requested information related to the performance of the Credit Agreement shall not apply to such Net Cash Proceeds) and (c) a breach by BIO’s duties; and ix. the Loan Parties failure of any term representation or warranty made by any of NYTEX Holdings, NYTEX Acquisition, New ▇▇▇▇▇▇▇ and FDF under this Agreement; provided that, in Forbearance Agreement to be true and complete as of the case of a breach of Sections 4(f) and (h), such breach shall continue unremedied for a period of 15 days. The Lenders shall be free to exercise any or all of their rights and remedies arising on account of any Event of Default under the Credit Agreement date when made or any other Loan Document upon the Forbearance Termination Datebreach of such representation or warranty.