Common use of Forbearance; Forbearance Period Clause in Contracts

Forbearance; Forbearance Period. (a) In reliance upon the representations, warranties and covenants of the Loan Parties contained in this Agreement, and solely upon the terms and subject solely to the conditions of this Agreement, each of the Forbearing Lenders (1) hereby agrees that, during the Forbearance Period (as defined below), such Lender shall not, and shall not request or direct the Administrative Agent to, solely in respect of the Designated Defaults (but not with respect to any other Defaults or Events of Default) (i) accelerate all of the Loans and the Obligations related thereto or (ii) exercise any other rights or remedies available to the Administrative Agent or the Forbearing Lenders pursuant to Section 8.02 of the Credit Agreement, Section 4.01 of the Security Agreement or any other Loan Document (including the charging of interest at the Default Rate, exercising rights of set off and conversion and refusal to permit additional extensions of credit, as applicable) or applicable Laws (the “Forbearance”) and (2) hereby directs the Administrative Agent, during the Forbearance Period, to abstain from taking any of the actions described in the immediately preceding sentence and (3) hereby agrees that, during the Forbearance Period, the Loan Parties shall not be required to make the representation and warranty in Section 5.16 of the Credit Agreement, including in any Committed Loan Notice with respect to the continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a) of the Credit Agreement. The Loan Parties acknowledge and agree that the Forbearance is limited to the extent specifically set forth above and no other terms, covenants, provisions, rights or remedies under the Credit Agreement or any other Loan Document or at law or in equity are intended to (or shall) be affected hereby, all of which remain in full force and effect.

Forbearance; Forbearance Period. (a) In reliance upon the representations, warranties and covenants of the Borrower and the other Loan Parties contained in this Agreement, and solely upon the terms and subject solely to the conditions of this Agreement, each of the Forbearing Lenders (1x) hereby agrees that, during the Forbearance Period (as defined below), such Lender shall not, and shall not request or direct the Administrative Agent to, solely in respect of the Designated Defaults (but not with respect to any other Defaults or Events of Default) (i) accelerate all of the Loans and the Obligations related thereto or (ii) exercise any other rights or remedies available to the Administrative Agent or the Forbearing Lenders pursuant to Section 8.02 of the Credit Agreement, Section 4.01 of the Security Agreement or any other Loan Document (including the charging of interest at the Default Rate, exercising rights of set off and conversion and refusal to permit additional extensions of credit, as applicable) or applicable Laws (the “Forbearance”) and (2) hereby directs the Administrative Agent, during the Forbearance Period, to abstain from taking any of the actions described in the immediately preceding sentence and (3) hereby agrees that, during the Forbearance Period, such Lender shall not, solely in respect of any of Specified Defaults, request that the Administrative Agent, and (y) solely in respect of any of Specified Defaults, hereby directs the Administrative Agent not to (and the Administrative Agent agrees that, during the Forbearance Period, it shall not) (i) declare all or any portion of the unpaid principal amount of outstanding Loans, interest accrued and unpaid thereon, fees, premiums or other amounts owing or payable under the Credit Agreement or under any other Loan Document to be immediately due and payable or (ii) exercise on behalf of itself or the Lenders any rights and remedies (including rights of setoff and any right under a power of attorney granted under the Loan Parties shall not be required Documents) available to make it and the representation and warranty in Section 5.16 Lenders under the Loan Documents or applicable law that arise solely as a result of any of the Credit Agreement, including in any Committed Loan Notice with respect to Specified Defaults (the continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a) of the Credit Agreement“Forbearance”). The Loan Parties acknowledge Borrower acknowledges and agree agrees that the Forbearance is limited to the extent specifically set forth above and no other terms, covenants, provisions, rights covenants or remedies under provisions of the Credit Agreement or any other Loan Document or at law or in equity are intended pursuant to this Section 3 to (or shall) be affected hereby, all of which remain in full force and effecteffect unaffected hereby. By their delivery of an executed copy of this Agreement to the Administrative Agent, the Forbearing Lenders (which constitute the Majority Lenders under the Credit Agreement) hereby direct the Administrative Agent during the Forbearance Period to forbear, and the Administrative Agent hereby agrees to forbear, from taking any of the actions specified in clauses (i) and (ii) of the first sentence of this Section 3.

Forbearance; Forbearance Period. (a) In reliance upon the representations, warranties and covenants of the Loan Credit Parties contained in this Agreement, and solely upon the terms and subject solely to the conditions of this Agreement, each of the Forbearing Lenders (1) hereby agrees that, during the Forbearance Period (as defined below), such Lender shall not, and shall not request or direct the Administrative Agent to, solely in respect of the Designated Collective Defaults (but not with respect to any other Defaults or Events of Default) (i) accelerate all of the Loans and the Obligations related thereto or (ii) exercise any other rights or remedies available to the Administrative Agent or the Forbearing Lenders pursuant to Section 8.02 8.1 of the Credit Agreement, Agreement or Section 4.01 5.01 of the Pledge and Security Agreement or any other Loan Document (including the charging of interest at the Default Rate, exercising rights of set off and conversion and refusal to permit additional extensions of credit, as applicable) or applicable Laws (the “Forbearance”) and (2) hereby directs the Administrative Agent, during the Forbearance Period, to abstain from taking any of the actions described in the immediately preceding sentence and (3) hereby agrees that, during the Forbearance Period, the Loan Parties shall not be required to make the representation and warranty in Section 5.16 of the Credit Agreement, including in any Committed Loan Notice with respect to the continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a) of the Credit Agreementsentence. The Loan Credit Parties acknowledge and agree that the Forbearance is limited to the extent specifically set forth above and no other terms, covenants, provisions, rights or remedies under the Credit Agreement (including, for the avoidance of doubt, the right to charge default interest in accordance with Section 2.9 of the Credit Agreement during the Forbearance Period) or any other Loan Credit Document or at law or in equity are intended to (or shall) be affected hereby, all of which remain in full force and effect.

Forbearance; Forbearance Period. (a) In reliance upon the representations, warranties and covenants of the Loan Credit Parties contained in this Agreement, and solely upon the terms and subject solely to the conditions of this Agreement, each of the Forbearing Lenders (1) hereby agrees that, during the Forbearance Period (as defined below), such Lender shall not, and shall not request or direct the Administrative Agent to, solely in respect of the Designated Collective Defaults (but not with respect to any other Defaults or Events of Default) (i) accelerate all of the Loans and the Obligations related thereto or (ii) exercise any other rights or remedies available to the Administrative Agent or the Forbearing Lenders pursuant to Section 8.02 8.1 of the Credit Agreement, Agreement or Section 4.01 5.01 of the Pledge and Security Agreement or any other Loan Document (including the charging of interest at the Default Rate, exercising rights of set off and conversion and refusal to permit additional extensions of credit, as applicable) or applicable Laws (the “Forbearance”) and (2) hereby directs the Administrative Agent, during the Forbearance Period, to abstain from taking any of the actions described in the immediately preceding sentence and (3) hereby agrees that, during the Forbearance Period, the Loan Parties shall not be required to make the representation and warranty in Section 5.16 of the Credit Agreement, including in any Committed Loan Notice with respect to the continuation of Eurocurrency Rate Loans pursuant to Section 2.02(a) of the Credit Agreementsentence. The Loan Credit Parties acknowledge and agree that the Forbearance is limited to the extent specifically set forth above and no other terms, covenants, provisions, rights or remedies under the Credit Agreement (including, for the avoidance of doubt, the right to charge default interest in accordance with Section 2.9 of the Credit Agreement during the Forbearance Period) or any other Loan Credit Document or at law or in equity are intended to (or shall) be affected hereby, all of which remain in full force and effect. (b) The “Forbearance Period” shall commence on the Forbearance Effective Date (as defined below) and shall terminate immediately and automatically upon the earlier to occur of (i) April 29, 2019, at 11:59 pm New York time and (ii) the occurrence of a Forbearance Termination Event (as defined below). (c) Upon the occurrence of a Forbearance Termination Event, the Forbearance Period and the Forbearance shall immediately and automatically end without the requirement of any demand, presentment, protest, notice (including any written notice required by Section 8.1 of the Credit Agreement) or other action of any kind (other than as provided in Section 3(d) below), all of which the Borrower and each of the other Credit Parties waive; provided notwithstanding anything to the contrary herein, the Forbearance Period and Forbearance shall terminate automatically and without notice of termination immediately upon the occurrence of an Event of Default of the type set forth in Section 8.1(f) or (g) of the Credit Agreement. (d) The occurrence of any of the following events or circumstances shall immediately and automatically constitute a termination event with respect to the Forbearance following delivery of notice (including by email) by the Administrative Agent at the request of the Requisite Lenders or the Requisite Tranche A/Revolving Lenders (each, a “Forbearance Termination Event”): (i) the occurrence of any Default or Event of Default under the Credit Agreement or any other Credit Document that is not a Collective Default; (ii) [reserved]; (iii) the occurrence of any breach by the Borrower or any Subsidiary of any covenant, term or other provision of this Agreement; (iv) any representation or warranty made by the Borrower or any Subsidiary herein or which is contained in any certificate, document or financial or other statement furnished by the Borrower at any time under or in connection with this Agreement or otherwise shall prove to have been inaccurate in any material respect on or as of the date made; (v) the commencement of any action, suit, litigation, investigation or other proceeding against the Administrative Agent or any Lender (i) by any of the Credit Parties or entity controlled by, affiliated with, related to or under common control with any of the Credit Parties; and (ii) by any Person asserting claims relating in any way to any of the Credit Parties, the Credit Agreement, the Credit Documents, or the Collateral, provided that no action permitted under the Intercreditor Agreement to be taken by the Second Lien Secured Parties, the Second Lien Required Lenders and/or the Second Lien Representative (each as defined in the Intercreditor Agreement) shall constitute a Forbearance Termination Event pursuant to this Section 3(d)(v)(ii); 2 (vi) any payment, or setting aside of funds, by the Borrower or any Subsidiary for the purpose of making any payments, or otherwise transfer any economic value (including the payment of any fees, costs or expenses of any advisors) to any direct or indirect equity holder of the Borrower in its capacity as such, including, without limitation, Xxxxxxxx X. Xxxxx, Xx. (or any affiliate of Xxxxxxxx X. Xxxxx, Xx.) (other than the transfer of assets in connection with the closing of the pending asset sale transaction between Lingo Communications, LLC or its affiliates, on the one hand, and any of the Credit Parties, on the other hand, pursuant to the terms of the asset purchase agreement for such transaction in effect on the date such agreement was entered into (the “Lingo Transaction”)); (vii) any payment, or setting aside of funds, by the Borrower or any Subsidiary, including with respect to interest, principal, fees, expenses, indemnification or otherwise, on account of or in connection with the Subordinated Notes or any Loans (as defined in the Second Lien Credit Agreement) or make any payment with respect to interest or principal on account of any Loans; (viii) if the Borrower or any Subsidiary engages in any transaction (including the incurrence of any Indebtedness) or makes any payment, transfers or takes any other action (or forbear from taking any action), in each case outside the ordinary course of business (other than the Lingo Transaction), provided that for purposes of this clause (viii), any payments made by the Borrower or any Subsidiary to (x) its vendors on account of outstanding obligations owed to such vendors consistent with the 13-Week Forecast (as defined below) (provided that Xxxxxxxxx shall be consulted prior to the entering into any payment plans with respect to past due amounts) or (y) the Advisors (as defined below, and solely to the extent billed on an hourly or monthly basis and excluding, for the avoidance of doubt, any transaction, completion or success fee) shall be deemed to have been made in the ordinary course of business; provided, further, that for purposes of this clause (viii), the incurrence of any Indebtedness for borrowed money shall be deemed to have been made outside the ordinary course of business; (ix) [reserved]; (x) the Borrower or any Subsidiary shall make, enter into or implement any amendment, waiver, supplement or other modification to any employment agreement or employee compensation plan, in each case, solely to the extent such agreement or compensation plan relates to an Executive Officer (as defined below), or pay or cause to be paid any amount contemplated by such agreements or plans before the date on which such amount becomes due and payable pursuant to the terms of the such agreements or plans, as applicable, or pay or cause to be paid any bonus, incentive, retention, severance, change of control or termination payments pursuant to the terms of such agreements or plans, as applicable, including, without limitation, any transaction or other bonus previously awarded but unpaid (it being understood by the Parties that “Executive Officer” means the Borrower’s Chief Executive Officer, Chief Operating Officer, Chief Revenue Officer, Chief Financial Officer, Chief Technology Officer or Executive Vice President and General Counsel); (xi) the failure by the Borrower, on the close of business of each Thursday during the Forbearance Period, to maintain aggregate bank and book cash balances of at least $2,000,000; (xii) any Lender under the Credit Agreement or any agent, trustee or representative on behalf of any such Lender shall commence a legal proceeding against any Credit Party or set off against any of their respective property, in each case, with respect to enforcement of the Credit Agreement or the obligations thereunder; (xiii) any lender under the Second Lien Credit Agreement or any agent, trustee or representative on behalf of any such lender shall commence a legal proceeding against any Credit Party or set off against any of their respective property, in each case, with respect to enforcement of the Second Lien Credit Agreement or the obligations thereunder; provided that no action permitted under the Intercreditor Agreement to be taken by the Second Lien Secured Parties, the Second Lien Required Lenders and/or the Second Lien Representative (each as defined in the Intercreditor Agreement) shall constitute a Forbearance Termination Event pursuant to this Section 3(d)(xiii); (xiv) the Maker shall commence a legal proceeding against any Credit Party or set off against any of their respective property, in each case, with respect to enforcement of the New Subordinated Note or the obligations thereunder; (xv) the failure by the Borrower to (a) within three (3) Business Days of the date hereof, enter into a customary fee letter (the “Xxxxxxxxx Fee Letter”) reasonably acceptable to Xxxxxxxxx and Co. (“Greenhill”) providing, among other things, that the Borrower shall pay all of Xxxxxxxxx’x reasonable and documented fees and expenses in connection with its representation of the ad hoc group comprised of certain of the Forbearing Lenders (the “Ad Hoc Group”) and (b) promptly upon (and no later than five (5) calendar days after) request by Xxxxxxx Xxxxxxx (as defined below), enter into a customary fee letter (the “TLA/Revolver FA Fee Letter”) reasonably acceptable to a financial advisor, if any (the “TLA/Revolver FA”), engaged by Xxxxxxx Xxxxxxx on behalf of a group of Lenders of Tranche A Term Loans and Revolving Lenders (the “TLA/Revolver Group”) providing, among other things, that the Borrower shall pay all of the TLA/Revolver FA’s reasonable and documented fees and expenses; 3 (xvi) the failure by the Borrower to pay all of the reasonable fees and expenses of (A) Xxxxx Xxxx & Xxxxxxxx LLP (“Xxxxx Xxxx”) and Xxxxxxxxx in accordance with the terms of a customary fee letter reasonably acceptable to Xxxxx Xxxx providing, among other things, that the Borrower shall pay all of Xxxxx Xxxx’x reasonable and documented fees and expenses in connection with its representation of the Ad Hoc Group and the Xxxxxxxxx Fee Letter, respectively, (B) Xxxxxx & Xxxxxx Xxxx Xxxxxxx (“Xxxxxx & Xxxxxx”) as counsel to the Administrative Agent, (C) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP (“Xxxxxxx Xxxxxxx”) incurred in connection with its representation of the TLA/Revolver Group within three (3) Business Days of presentment of a summary invoice and (D) the TLA/Revolver FA (if any) in accordance with the TLA/Revolver FA Fee Letter; and (xvii) a failure specified in Section 10(b) below. (e) This Agreement is limited in nature and nothing contained herein is intended, or shall be deemed or construed, to (i) constitute a waiver of any Collective Default or any existing or future Defaults or Events of Default (including any Event of Default arising from the Collective Defaults) or compliance with any term or provision of the Credit Documents or at law or in equity or (ii) establish a custom or course of dealing between the Credit Parties, on the one hand, and the Administrative Agent and/or any Lender, on the other hand. (f) Immediately and automatically upon the Forbearance Period ending in accordance with its terms, the agreements set forth in the first sentence of Section 3(a) hereof (including the Forbearance) shall be void ab initio (it being understood, for the avoidance of doubt, that this provision shall not impair the effectiveness of any other provisions of this Agreement, which shall remain in full force and effect), and each of the Administrative Agent and the Forbearing Lenders shall be free in its sole and absolute discretion, without limitation, to immediately proceed to enforce any or all of its rights and remedies provided under, and in accordance with, the Credit Documents, at law or in equity. Notwithstanding the occurrence of the Forbearance Effective Date, each of the Credit Parties acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Forbearing Lenders under the Credit Documents, at law or in equity with respect to the Credit Documents, the transactions thereunder, the Borrower or any other Credit Party shall in each case continue to be available to the Administrative Agent and the Forbearing Lenders. (g) [Reserved]. (h) The Parties agree that the running of all statutes of limitation and the doctrine of laches applicable to all claims or causes of action that the Administrative Agent and/or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower and/or the other Credit Parties are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. Section 4.