Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of: (a) February 11, 2019; (b) the making of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes; (c) the date on which any of the following shall occur: (i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreement; (ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or (iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective; (d) the failure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and (e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed made.
Appears in 2 contracts
Sources: Forbearance Agreement (DITECH HOLDING Corp), Forbearance Agreement
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11May 3, 2019;
, (b) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear from enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit; and
(b) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and
(e) , the failure other Loan Documents and applicable law. In furtherance of any representation or warranty made by the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower under this Agreement or any other Loan Party shall continue to be true in all material respects (oravailable to the Administrative Agent and the Lenders. For the avoidance of doubt, in each Loan Party acknowledges and confirms that the case of any representation and warranty qualified by materiality, in all respects) as agreement of the date when made Administrative Agent and the Lenders signatory hereto temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or deemed madethe 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.”
Appears in 2 contracts
Sources: Forbearance Agreement (Ascent Capital Group, Inc.), Forbearance Agreement (Monitronics International Inc)
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11May 8, 2019;
, (b) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear from enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit; and
(b) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and
(e) , the failure other Loan Documents and applicable law. In furtherance of any representation or warranty made by the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower under this Agreement or any other Loan Party shall continue to be true in all material respects (oravailable to the Administrative Agent and the Lenders. For the avoidance of doubt, in each Loan Party acknowledges and confirms that the case of any representation and warranty qualified by materiality, in all respects) as agreement of the date when made Administrative Agent and the Lenders signatory hereto temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or deemed madethe 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.”
Appears in 2 contracts
Sources: Forbearance Agreement (Monitronics International Inc), Forbearance Agreement (Ascent Capital Group, Inc.)
Forbearance. Effective as From the date of this Agreement until the earlier of the Forbearance Effective Closing Date or termination of this Agreement in accordance with ARTICLE VII hereof, QCP agrees to forbear from bringing suit or exercising remedies under the Guaranty, the Master Lease or Agreements Regarding Subleases arising out of or related to (i) the failure to pay Rent (as defined belowin the Master Lease), subject (ii) notwithstanding Section 4.4 of the Master Lease, the failure to deposit or pay any amounts required to be deposited pursuant to Section 4.4 of the Master Lease prior to the terms and conditions termination of this Agreement and Agreement, (iii) the failure to make capital expenditures required by the Master Lease, (iv) the occurrence of any “Event of Default” described in reliance upon the representation and warranty Section 16.1(g) or Section 16.1(h) of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) Master Lease as a result of the occurrence transactions and continuation other actions contemplated by this Agreement, (v) any “Event of any Default” under clause (ii) of Section 16.1(l) of the Specified Defaults solely during Master Lease resulting from the period failure of the Debtor to make any payment due under the Guaranty, (vi) the 2017 default under and acceleration of amounts owing under that certain Credit Agreement, dated as of April 6, 2011, among Holdings (as defined therein), HCR Healthcare, LLC, the several banks and other financial institutions or entities from time to time parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent, and ▇.▇. ▇▇▇▇▇▇ Securities Inc., Credit Suisse Securities (USA) LLC and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as co-Lead Arrangers and Joint Bookrunners, as amended by that certain First Amendment to Credit Agreement, dated as of March 21, 2014 and that certain Second Amendment to Credit Agreement, dated as of May 6, 2015 (the “Forbearance Period▇▇ ▇▇▇▇▇▇ Credit Facility”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
(a) February 11, 2019;
(b) the making of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents ); or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(dvii) the failure of the Borrower Debtor to comply with make any termpayment due under the Guaranty, condition or covenant set forth in this Agreement; and
(e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (orincluding, in each case, by delivering a notice of default under the case Master Lease, terminating the Master Lease, declaring an “Event of Default” under the Master Lease or exercising any representation other right or remedy under the Master Lease and/or Agreements Regarding Subleases against the Debtor or its direct and warranty qualified by materialityindirect Subsidiaries and, with respect to each, their property and interests in all respects) as of the date when made or deemed madeproperty.
Appears in 2 contracts
Sources: Alternative Plan Sponsor Agreement, Alternative Plan Sponsor Agreement (Quality Care Properties, Inc.)
Forbearance. Effective as Marriott hereby agrees to forbear from (i) exercising its right to demand, under the Reimbursement Agreement, cash collateral in excess of the Forbearance Effective Date cash collateral required to be funded and replenished by Sunrise hereunder, and (as defined belowii) on or prior to December 28, 2011, sending to the Lessor any notice terminating any of the Leases (subsections (i) and (ii), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”,” it being understood that Marriott shall have no such obligation to forbear under subsection (i) from taking of this paragraph after December 28, 2011), until the occurrence of any Enforcement Action (as defined below) as a result one of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest offollowing events:
(a) February 11Any Sunrise Entity fails to perform or observe any of its obligations under this Agreement, 2019and such failure is not fully cured within five (5) business days after written notice thereof is given to Sunrise;
(b) The indebtedness under Sunrise’s principal bank credit facility is accelerated due to an event of default thereunder (it being understood that the making current principal bank facility is the Credit Agreement dated as of June 16, 2011 between Sunrise, KeyBank, National Association, as administrative agent thereunder, and the interest payment that was due on December 17other Lenders as defined therein party thereto, 2018 with respect as amended from time to the Second Lien Senior Subordinated PIK Toggle Notestime);
(c) The termination, after the date on which any hereof, of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) senior living facility leases, management agreements or similar event agreements to which Sunrise or an affiliate is a party, which generate an aggregate of at least $50 million in annual revenues to Sunrise on a consolidated basis (in each casemeasured using the last full calendar year’s revenues prior to such termination), other than arising in connection with excluding any such management agreements, leases or similar agreements as to which Sunrise received a termination fee or similar payment designed to compensate Sunrise for the Specified Defaults) occurring under any fair value of such terminated agreement for the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effectiveremaining term thereof;
(d) the failure Sunrise or any material subsidiary of Sunrise voluntarily files for bankruptcy protection or any involuntary bankruptcy proceeding is commenced against Sunrise or any of its material subsidiaries that is not dismissed or stayed within ninety (90) days after commencement thereof; or
(e) Either of the Borrower events occur as described in Section 4(vii) above, following a return of funds to comply with Sunrise under Section 4(vi) above. Following the occurrence of any termone or more of such events (a “Forbearance Termination Event”), condition the Forbearance shall no longer have any force or covenant effect, and Marriott shall be free to demand, at its option and at any time or from time to time, that Sunrise make such cash collateral payments, or take such other actions, as are then required under the Reimbursement Agreement, without regard to any of the provisions herein establishing the amount of cash collateral Sunrise is required to provide or maintain hereunder but taking into account the amounts on deposit at the relevant time as provided herein. The occurrence of a Forbearance Termination Event shall not diminish or affect Sunrise’s rights or obligations hereunder. Except as expressly set forth in this Agreement; and
(e) , each party retains all of its rights and remedies and defenses under the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed madeReimbursement Agreement.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Sunrise Senior Living Inc)
Forbearance. Effective as Each Consenting Term Lender (collectively representing the Required Lenders) agrees that, for the duration of the Forbearance Effective Date Support Period, in connection with any default or event of default arising under the Credit Agreement in connection with the Restructuring (as defined belowincluding pursuant to Section 7.01(e) of the Credit Agreement), subject (i) each Consenting Term Lender shall forbear from (A) commencing any judicial enforcement proceedings against the Company or any of its subsidiaries, (B) exercising (or directing any Person to exercise) any remedy available to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Consenting Term Lenders and the Administrative Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
(a) February 11, 2019;
(b) the making of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default , including without limitation pursuant to Article 7 thereof, any Credit Document (as defined in the Second Lien Senior Subordinated PIK Toggle Notes IndentureCredit Agreement) or otherwise by contract, in law or in equity, (other than arising in connection with C) requesting that the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee Administrative Agent not convert Loans (as defined in the Second Lien Senior Subordinated PIK Toggle Notes IndentureCredit Agreement) into, or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default continue Loans as, Eurodollar Loans (as defined in the Credit Agreement) and/or (D) voting in favor of, or otherwise taking any action to direct, instruct or authorize any Person to undertake any of the Warehouse Facilitiesactions in foregoing clauses (A) through (C) and (ii) no additional interest shall accrue pursuant to Section 2.07 of the Credit Agreement; provided that if this Agreement is terminated during the Support Period other than pursuant to Section 5(e) or similar event (in each caseSection 5(c)(i) hereof, other than arising in connection with the Specified Defaults) occurring under any interest that would have otherwise accrued pursuant to Section 2.07 of the Warehouse Facilities or (y) any Credit Agreement during the Support Period absent the forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(eSection 3(f) the failure of any representation or warranty made by the Borrower under this Agreement shall be deemed to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) have accrued as of the date when made of termination of this Agreement, without any further action by any Term Lender or deemed madethe Administrative Agent, to the extent provided under the Credit Agreement. For the avoidance of doubt, the forbearance set forth in this Section 3(f) shall not itself constitute a waiver with respect to any defaults or events of default under the Credit Agreement, and shall not bar the Administrative Agent or any Consenting Term Lender from filing a proof of claim, taking action to establish the amount of any Claim, or exercising any rights under this Agreement, including terminating this Agreement pursuant to Section 5(b) hereof.
Appears in 2 contracts
Sources: Restructuring Support Agreement, Restructuring Support Agreement (Walter Investment Management Corp)
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11▇▇▇▇▇ ▇▇, 2019;
▇▇▇▇, (b▇) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of the Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear upon enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit; and
(b) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and
(e) , the failure other Loan Documents and applicable law. In furtherance of any representation or warranty made by the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower under this Agreement or any other Loan Party shall continue to be true in all material respects (oravailable to the Administrative Agent and the Lenders. For the avoidance of doubt, in each Loan Party acknowledges and confirms that the case of any representation and warranty qualified by materiality, in all respects) as agreement of the date when made Administrative Agent and the Lenders signatory hereto temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or deemed madethe 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.
Appears in 2 contracts
Sources: Forbearance Agreement (Ascent Capital Group, Inc.), Forbearance Agreement (Monitronics International Inc)
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11May 17, 2019;
, (b) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear from enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit;
(b) any Default or Event of Default under Section 8.01(b) of the Credit Agreement, resulting from the Consolidated Senior Secured Eligible RMR Leverage Ratio exceeding the limit specified in Section 7.11(c) of the Credit Agreement as of the fiscal quarter ended March 31, 2019 (the “Financial Covenant Default”); and
(c) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and, the other Loan Documents and applicable law. In furtherance of the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower or any other Loan Party shall continue to be available to the Administrative Agent and the Lenders. For the avoidance of doubt, each Loan Party acknowledges and confirms that the agreement of the Administrative Agent and the Lenders signatory hereto 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.”
(eb) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respectsSection 8(b) as of the date when made or deemed made.Forbearance Agreement is replaced in its entirety and further amended as follows:
Appears in 1 contract
Sources: Forbearance Agreement (Monitronics International Inc)
Forbearance. Effective as (i) In reliance upon the undertakings, representations, warranties, and covenants of the Forbearance Effective Date (as defined below)each Borrower contained in this Agreement, and subject to the terms and conditions of this Agreement and any documents or instruments executed in reliance upon connection herewith, the representation Lender agrees to forbear from exercising its rights and warranty remedies under the Transaction Documents or applicable law in respect of or arising out of (a) the Borrower Existing Defaults, (b) any failure to comply with the covenants set forth in Section 4 belowSections 6.1.1, 6.1.2, or 6.5.9 of the SPA (an “Anticipated SPA Default”), or (c) any failure to comply with the covenants set forth in Sections 5.3(a), 5.3(c), or 5.10 of the Credit Agreement (an “Anticipated Credit Agreement Default,” and together with the Anticipated SPA Defaults, the undersigned Lenders “Anticipated Defaults”), for the period commencing on the Effective Date and ending on the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action Forbearance Termination Date (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”).
(ii) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (As used herein, the “Forbearance Effective Termination Date”) and ending on ” means the date that is the earliest of:
: (a) February 11August 24, 2019;
2023; provided that (1) such date shall be automatically extended by twenty-five (25) days (a “Forbearance Extension”) if, on or prior to such date, the Borrowers shall have (v) provided Lender with written confirmation from the counterparty to the Payoff Transaction that is currently being negotiated that such counterparty has obtained approval by its investment committee to proceed in preparing and negotiating definitive documentation to enter into such Payoff Transaction, and (w) delivered to Lender a chart listing, for each of the Borrowers’ key stakeholders, whether or not such stakeholder has (A) consented to the Payoff Transaction, (B) executed a settlement agreement with the Borrowers relating to the Payoff Transaction, and (C) if a settlement agreement has not been executed, describing the status of negotiations with such stakeholder with respect to the Payoff Transaction, which chart shall be certified by the Borrowers as to its accuracy, provided further that any such Forbearance Extension and the Forbearance Period shall automatically terminate and the Forbearance Termination Date shall automatically occur if (x) the discussions with respect to the Payoff Transaction are terminated by either party thereto, or any party thereto indicates that it is no longer pursuing the Payoff Transaction, for any reason, (y) the Borrowers’ Board of Directors passes a resolution or consent which would approve the filing or commencement of an Insolvency Proceeding, or (z) if the parties thereto modify, amend, or otherwise alter the terms of the proposed transaction such that it would no longer be a Payoff Transaction, and (2) such date may be further extended if agreed in writing by the Lender and the Borrowers; (b) the making of date on which any Borrower commences, or threatens in writing to commence, any litigation against the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
Lender; (c) the date on which any Borrower takes any action inconsistent with the Lender’s interests in the Collateral; (d) the commencement of any Insolvency Proceeding by or against any Borrower; provided that the following Lender shall occur:
not participate in commencing any involuntary Insolvency Proceeding against any Borrower during the Forbearance Period, (ie) the departure of any member of Borrowers’ senior management, or (f) the occurrence or existence of any default or Event of Default hereunder or under the Transaction Documents, or any event or circumstance which, with notice or the passage of time, shall become an Event of Default (an “Unmatured Default”), other than the Specified Existing Defaults or the Anticipated Defaults) occurring under . For purposes of clarity, failure of the Credit Agreement;
(ii) (x) Borrowers to satisfy any of the covenants herein will also constitute an immediate Event of Default for purposes of determining the Forbearance Termination Date. An “Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any state, federal or foreign law for, or any agreement of such Person to, (as defined in 1) the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring entry of an order for relief under the Second Lien Senior Subordinated PIK Toggle Notes Documents United States Bankruptcy Code (Title 11 of the United States Code, 11 U.S.C. §101, et seq.), or any other insolvency, debtor relief or debt adjustment law; (2) the appointment of a receiver, trustee, liquidator, administrator, conservator or other custodian for such Person or any part of its Property; or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x3) an Event assignment or trust mortgage for the benefit of Default (as defined in any of the Warehouse Facilities) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed madecreditors.
Appears in 1 contract
Forbearance. Effective as of Provided: (i) the Forbearance Effective Date (as defined below), subject Obligors continue to provide Documents to the DOJ, NRC, and ODEQ in accordance with Paragraph 4 hereof; (ii) the Obligors meet the Conditions described in Paragraph 5 hereof; (iii) the Obligors continue to negotiate the terms of a restructuring with the DOJ, NRC, and conditions of this Agreement ODEQ in good faith; (iv) the Obligors fully and in reliance upon the representation timely satisfy all obligations and warranty of the Borrower covenants set forth in Section 4 belowthis Forbearance Agreement; and (v) no representation or warranty under this Agreement is false or inaccurate in any material respect, the undersigned Lenders DOJ, NRC, and the Agent at the direction of the Required Lenders hereby agree to ODEQ shall forbear until one year (the “Forbearance”366 days) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period Effective Date (the “Forbearance Period”) beginning on from exercising and enforcing their rights and remedies under the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
(a) February 11, 2019;
(b) the making Funding Documents for full payment of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring amounts owing under the Credit Agreement;
(ii) (x) an Event of Default (Primary Note and the Secondary Note, including loans to Fansteel by FMRI from payments made under those Notes, as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each casematured. The DOJ’s, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect NRC’s, and ODEQ’s agreements to the Specified Defaults under any of the Warehouse Facilities forbear hereunder shall cease to be effective;
immediately upon or at any time after the earlier of (d1) the failure of the Borrower Obligors to comply with perform any termof the foregoing conditions (i)-(v) and the failure of the Obligors to cure such default within 5 days of receiving notice of such default, condition or covenant set forth in this Agreement; and
(e2) the failure of the Obligors to perform any representation of the foregoing conditions (i)-(v) and the passage of 60 days from the Effective Date, whereupon the DOJ, NRC, and ODEQ shall be under no further obligation so to forbear and immediately thereupon may exercise and enforce all of the DOJ’s, the NRC’s, and/or ODEQ’s rights and remedies under the Funding Documents and/or at law. This Forbearance Agreement does not prevent DOJ, NRC, or warranty made ODEQ from seeking to enjoin any proposed sale on the grounds that such sale is inconsistent with the terms and conditions of Fansteel’s Plan of Reorganization or the Funding Documents issued pursuant to that Plan. Fansteel agrees to provide DOJ, NRC and ODEQ with at least 60 days advance notice of the anticipated closing date of any proposed sale of any stock or assets of Fansteel. Nothing herein shall preclude the commencement of any action by the Borrower under this Agreement United States or ODEQ to be true in all material respects (orprotect the public health, in welfare, or the case environment with or without provision of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed madeadvance notice.
Appears in 1 contract
Sources: Forbearance Agreement
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11May 10, 2019;
, (b) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear from enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit;
(b) any Default or Event of Default under Section 8.01(b) of the Credit Agreement, resulting from the Consolidated Senior Secured Eligible RMR Leverage Ratio exceeding the limit specified in Section 7.11(c) of the Credit Agreement as of the fiscal quarter ended March 31, 2019 (the “Financial Covenant Default”); and
(c) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and
(e) , the failure other Loan Documents and applicable law. In furtherance of any representation or warranty made by the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower under this Agreement or any other Loan Party shall continue to be true in all material respects (oravailable to the Administrative Agent and the Lenders. For the avoidance of doubt, in each Loan Party acknowledges and confirms that the case of any representation and warranty qualified by materiality, in all respects) as agreement of the date when made Administrative Agent and the Lenders signatory hereto temporarily to forbear shall not apply to nor preclude any remedy available to the Administrative Agent or deemed madethe 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.”
Appears in 1 contract
Sources: Forbearance Agreement (Monitronics International Inc)
Forbearance. Effective as In reliance upon the representations and warranties, agreements, and covenants of the Forbearance Effective Date (as defined below)Notes Parties contained in this Agreement, and subject to the terms and conditions provided herein, during the period commencing on the date hereof and ending upon the event earliest to occur of (a)–(m) below (any such event in the following clauses (a)–(m) of this Section 1.02, a “Termination Event,” and the period beginning on the date of this Agreement and in reliance upon ending automatically on the representation and warranty date of the Borrower set forth in Section 4 belowTermination Event, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on ), each Forbearing Stakeholder hereby agrees 1 As defined in that certain Amended and Restated Pari Passu Intercreditor Agreement, dated as of May 5, 2023, by and among, the first date that Issuer, the conditions set forth in Section 3 of this Agreement shall have been satisfied other grantors party thereto, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International Bank, as authorized representative for the credit agreement secured parties, and U.S. Bank Trust Company, National Association, as authorized representative for the senior secured notes creditors (as amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Forbearance Effective DateFirst Lien Pari Passu Intercreditor Agreement”). -(x) to forbear from exercising any of its Rights and ending on the date that is the earliest of:
(a) February 11Remedies, 2019;
(b) the making of the interest payment that was due on December 17, 2018 including with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring acceleration, under the Credit Agreement;
(ii) (x) an applicable Indentures or applicable law with respect to any Default or any Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle applicable Notes IndentureDocuments) arising under Section 6.01 of the applicable Indentures relating to or as a proximate result of (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (yi) the Trustee Issuers’ failure to pay interest on the Notes which was due on October 1, 2023 and payable on October 2, 2023 or during the subsequent 30-day grace period, and (ii) the entry by the Notes Parties into this Agreement with an Affiliate (as defined in the Second Lien Senior Subordinated PIK Toggle Notes each Indenture) of the Issuer without complying with certain requirements set forth in Section 4.14 of each Indenture (clauses (i) and (ii) together, the “Specified Defaults and Events of Default”) and (y) to exercise its rights, as applicable, to direct the Trustees and the Notes Collateral Agents to forbear from exercising any remedy available to the Trustees or Notes Collateral Agents or exercising any trust or power conferred upon the Trustees or Notes Collateral Agents with respect to the Specified Defaults and Events of Default prior to the occurrence of a Termination Event; provided, that any such actions shall be at no cost to the Forbearing Stakeholders, and the Forbearing Stakeholders shall not be required to provide any indemnities or otherwise take any action or issue any direction or instruction that would (or, in the Forbearing Stakeholders’ reasonable discretion, could) cause the Forbearing Stakeholders to become liable for any amounts to the Trustees or any holder other person. For the avoidance of Second Lien Senior Subordinated PIK Toggle Notes takes doubt, each Forbearing Stakeholder agrees that it will not (individually or collectively) deliver any action in violation notice or instruction to the Trustees directing the Trustees to exercise any of the First Lien/Second Lien Intercreditor Agreementrights and remedies under the Indentures or applicable law with respect to the Specified Defaults and Events of Default during the Forbearance Period; and/orprovided, further, that interest on all overdue principal and interest (including, for the avoidance of doubt, default interest) with regard to the Notes shall continue to accrue in accordance with the applicable Indentures but, for the avoidance of doubt, shall not be due and payable during the Forbearance Period. A copy of this Agreement shall be delivered by counsel to the Notes Parties to the Trustees, the Notes Collateral Agents, and their respective counsel, with ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP (“Weil”) as counsel to the Forbearing SoftBank Parties (as defined herein), ▇▇▇▇▇▇ LLP (“Cooley”) as counsel to the Forbearing Cupar Parties (as defined herein), and ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇ ▇▇▇▇”) as counsel to the Forbearing AHG Noteholders (as defined herein) copied, and such delivery is hereby deemed to constitute the direction required by subclause (y) of this Section 1.02 and satisfy each Forbearing Stakeholder’s obligation to so direct the Trustees and the Notes Collateral Agents.
A Termination Event under this Section 1.02 consists of the earliest of any of the following:
(iiia) 11:59 p.m. (New York City time) on November 6, 2023;
(b) failure by the Company to provide to each of (x) an SoftBank Vision Fund II-2 L.P. and any of its affiliates that hold the Notes (collectively, the “Forbearing SoftBank Parties”), (y) Cupar Grimmond, LLC (“Cupar”) and any of its affiliates that hold the Notes (collectively, the “Forbearing Cupar Parties”) and (z) the Forbearing AHG Noteholders (as defined below), by November 1, 2023, a 13-week cash flow forecast for the period commencing on or about November 6, 2023 that is in form and substance acceptable to each of (aa) the Forbearing SoftBank Parties, (bb) the Forbearing Cupar Parties, and (cc) at least two (2) separate institutions constituting Forbearing Stakeholders who hold a majority in face amount of the Notes held by members of the ad hoc group represented by ▇▇▇▇▇ ▇▇▇▇ (the “Forbearing AHG Noteholders” and, such majority of Forbearing AHG Noteholders, the “Majority Forbearing AHG Noteholders”);
(c) the occurrence of any Event of Default (as defined in any of the Warehouse FacilitiesIndentures) or similar event (in each case, under the Indentures following the date hereof other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any and Events of the Warehouse Facilities shall cease to be effectiveDefault;
(d) the failure commencement by any of the Borrower to comply with Notes Parties of a case under title 11 of the United States Code or any termsimilar reorganization, condition liquidation, insolvency, or covenant set forth in this Agreement; andreceivership proceeding under applicable law;
(e) payment of all of the interest that was due on October 1, 2023 and payable on October 2, 2023 under the applicable Indentures to each Forbearing Stakeholder, as applicable;
(f) the failure of any representation or warranty made delivery by the Borrower under this Agreement Company and/or its advisors of answers to be true the questions by November 1, 2023, as set forth in all material respects (orthe diligence list delivered to the Company’s advisors on October 17, 2023 by Ducera, in each case reasonably satisfactory to each of the case Forbearing Stakeholder Advisors;
(g) the failure by the Company to pay any amounts owed to Weil, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, Inc. (“Houlihan”), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & Deutsch LLP (“WMD”), ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. (“▇▇▇▇▇ ▇▇▇▇▇▇▇”), ▇▇▇▇▇ ▇▇▇▇, Ducera Partners (“Ducera”), ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP (“▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇”), ▇▇▇▇▇▇ & ▇▇▇▇▇ N.V. (“L&L”), and Freshfields Bruckhaus & ▇▇▇▇▇▇▇▇ LLP (“Freshfields”) in accordance with Section 2.02 of this Agreement;
(h) any of the Notes Parties taking any of the following actions: (i) the incurrence of any representation indebtedness outside of the ordinary course of business; (ii) the granting of any lien outside of the ordinary course of business; (iii) the making of any investment outside of the ordinary course of business; (iv) the consummation or completion of any merger, consolidation, acquisition, sale, or disposition of assets, or similar transaction outside the ordinary course of business or (v) any other action outside of the ordinary course of business, which includes, without limitation, (1) the issuance of any common or preferred stock or partnership interests, units, shares or other equity or equity convertible interests, (2) the amendment of the organizational, governance, corporate, limited liability or partnership documents of the Notes Parties, and warranty qualified by materiality(3) any agreement, contractual or other similar arrangement with the Forbearing Softbank Parties (other than any agreement, contractual or other similar arrangement with the Forbearing SoftBank Parties relating to the Credit Agreement2), Forbearing AHG Noteholders, and/or the Forbearing Cupar Parties, in all respects) as each case without the express written consent of each of the date when made Forbearing SoftBank Parties, the Forbearing Cupar Parties, and the Majority Forbearing AHG Noteholders;
(i) the entry by any Notes Party into any support agreement or deemed made.definitive documentation with respect to, or announcement by any Notes Party of its intent to pursue, any restructuring, recapitalization, refinancing, repurchase or other material transaction in respect of any Notes or any of its properties, whether through a court-supervised insolvency proceeding or otherwise, without the express written consent of each of the Forbearing SoftBank Parties, the Forbearing Cupar Parties, and the Majority Forbearing AHG Noteholders;
(j) the entry by any Notes Party into any material agreement or transaction with any of its landlords, in each case requiring, during the Forbearance Period, either (x) a draw on any letter of credit in excess of $2.00 million in satisfaction of such Notes Party’s existing obligations or (y) aggregate cash payments by such Notes Party in excess of $5.00 million, in each case without (i) notice delivered to each of the Forbearing SoftBank Parties, the Forbearing Cupar Parties, and the Majority Forbearing AHG Noteholders at least 24 hours prior to such entry (which may be delivered to Weil on behalf of the Forbearing SoftBank Parties, Cooley on behalf of the Forbearing Cupar Parties, and ▇▇▇▇▇ ▇▇▇▇ on behalf of the Majority Forbearing AHG Noteholders) and (ii) the prior written consent of each of the Forbearing SoftBank Parties, the Forbearing Cupar Parties, and
Appears in 1 contract
Sources: Forbearance Agreement (WeWork Inc.)
Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during During the period (the “Forbearance Period”) beginning commencing on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”Date (as defined herein) and ending on the date that (the “Forbearance Termination Date”) which is the earliest of:
to occur of (a) February 11May 15, 2019;
, (b) the making of the interest payment that was due on December 17, 2018 with respect failure to the Second Lien Senior Subordinated PIK Toggle Notes;
meet any Milestone (as defined in Section 8 hereof); (c) the date on which occurrence of any of the following shall occur:
(i) an Default or Event of Default under the Credit Agreement (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case), other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any termof the requirements of Section 6 or Section 7 hereof, condition (e) the acceleration of the 9.125% Senior Notes due 2020 (the “Notes”) issued pursuant to that certain Indenture dated as of March 23, 2012 (the “Notes Indenture”) by and among the Borrower, the guarantors party thereto, and U.S. Bank National Association, as trustee (in such capacity, the “Notes Trustee”), or covenant (f) any action by the Notes Trustee and/or any holder of Notes to exercise rights or remedies pursuant to the Notes Indenture after an Event of Default (as defined in the Notes Indenture), the Required Lenders hereby forbear from enforcement of:
(a) the requirement of Section 6.01(a) of the Credit Agreement that the report and opinion of Ernst & Young, KPMG or another independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders delivered with respect to the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of the fiscal year ended December 31, 2018, and the related consolidated statement of income or operations, and consolidated statement of changes in shareholders’ equity, and cash flows for such fiscal year, not include an explanatory paragraph expressing substantial doubt about the ability of the Borrower or any Loan Party to continue as a going concern or any qualification or exception as to the scope of such audit;
(b) any Default or Event of Default under Section 8.01(b) of the Credit Agreement, resulting from the Consolidated Senior Secured Eligible RMR Leverage Ratio exceeding the limit specified in Section 7.11(c) of the Credit Agreement as of the fiscal quarter ended March 31, 2019 (the “Financial Covenant Default”); and
(c) any Default or Event of Default under Section 8.01(e) of the Credit Agreement, resulting from the Borrower’s failure to make the interest payment due on April 1, 2019 under the Senior Unsecured Notes. Upon the Forbearance Termination Date, (i) the forbearance set forth in this Section 4 of this Forbearance shall terminate automatically and be of no further force or effect, and (ii) subject to the terms of the Loan Documents and applicable law, the Administrative Agent and each Lender shall be free in its sole and absolute discretion, without limitation, to proceed to enforce any or all of its rights and remedies set forth in the Credit Agreement; and, the other Loan Documents and applicable law. In furtherance of the foregoing, and notwithstanding the occurrence of the Forbearance Effective Date, each Loan Party acknowledges and confirms that, subject to the Forbearance, all rights and remedies of the Administrative Agent and the Lenders under the Loan Documents and applicable law with respect to the Borrower or any other Loan Party shall continue to be available to the Administrative Agent and the Lenders. For the avoidance of doubt, each Loan Party acknowledges and confirms that the agreement of the Administrative Agent and the Lenders signatory hereto 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. The parties hereto 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 or any Lender may be entitled to take or bring in order to enforce its rights and remedies against the Borrower or any other Loan Party are, to the fullest extent permitted by law, tolled and suspended during the Forbearance Period. For the avoidance of doubt, no grace period or period required for a Default to mature or become an Event of Default shall be tolled or suspended by this Forbearance.”
(eb) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respectsSection 8(b) as of the date when made or deemed made.Forbearance Agreement is replaced in its entirety and further amended as follows:
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Forbearance. Effective as of the Forbearance Effective Date (as defined below), subject to the terms and conditions of this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the undersigned Lenders and the Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any Enforcement Action (as defined below) as a result of the occurrence and continuation of any of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
(a) February 118, 2019;
(b) the making of the interest payment that was due on December 17, 2018 with respect to the Second Lien Senior Subordinated PIK Toggle Notes;
(c) the date on which any of the following shall occur:
(i) an Event of Default (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse FacilitiesFacilities (as defined below)) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed made.
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Forbearance. Effective as (a) Each of the Forbearance Lenders agrees that, for the period from the Amendment Effective Date to the Section 3 Termination Date (as defined below), subject it will not exercise any of the remedies available to it, and will not instruct the Administrative Agent to exercise or consent to the terms and conditions of this Agreement and in reliance upon the representation and warranty Administrative Agent exercising any of the Borrower set forth remedies available to it, in either case, under any of the Loan Documents (including, without limitation, to accelerate the Loans or terminate the Commitments as contemplated in Section 4 below, the undersigned Lenders and the Agent at the direction 8 of the Required Lenders hereby agree to forbear (the “Forbearance”Credit Agreement) from taking any Enforcement Action (as defined below) solely as a result of the occurrence and continuation of any Event of the Specified Defaults solely during the period (the “Forbearance Period”) beginning on the first date that the conditions set forth in Section 3 Default or Potential Event of this Agreement shall have been satisfied (the “Forbearance Effective Date”) and ending on the date that is the earliest of:
Default (a) arising under subsection 8.2(i) of the Credit Agreement by virtue of the failure of Company to make any scheduled interest payment required under (i) the Indenture dated as of July 1, 1998 with Wilmington Trust Company, as Trustee, (ii) the Indenture dated as of February 1110, 2019;
1997 with Wilmington Trust Company, as Trustee or (iii) the Indenture dated as of July 1, 1997 with Wilmington Trust Company, as Trustee (collectively, the "Specified Indentures"; and any such non-payment, the "Specified Indenture Defaults") or (b) the making arising under subsection 8.1 of the interest Credit Agreement by virtue of the failure of Company to make any scheduled principal payment that was due under the Credit Agreement on September 30, 2003 (any such non-payment, together with the Specified Indenture Defaults, the "Specified Defaults"). The "Section 3 Termination Date" shall be the earliest of (1) December 171, 2018 with respect 2003, (2) the date on which each Specified Default has been cured or waived, through amendments to the Second Lien Senior Subordinated PIK Toggle Notes;
Specified Indentures, the Credit Agreement or otherwise, so long as Company has delivered to the Administrative Agent five days' prior written notice of its intent to cure any Specified Default by payment, (c3) the date on which a notice of acceleration under any Specified Indenture has been delivered to Company or (4) the date on which any of the following shall occur:
(i) an other Event of Default (other than the Specified Defaults) occurring under the Credit Agreement;
(ii) (x) an or Potential Event of Default (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) (other than arising in connection with the Specified Defaults) occurring under the Second Lien Senior Subordinated PIK Toggle Notes Documents or (y) the Trustee (as defined in the Second Lien Senior Subordinated PIK Toggle Notes Indenture) or any holder of Second Lien Senior Subordinated PIK Toggle Notes takes any action in violation of the First Lien/Second Lien Intercreditor Agreement; and/or
(iii) (x) an Event of Default (as defined in any of the Warehouse Facilities) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any of the Warehouse Facilities or (y) any forbearance given with respect to the Specified Defaults under any of the Warehouse Facilities shall cease to be effective;
(d) the failure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(e) the failure of any representation or warranty made by the Borrower under this Agreement to be true in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) as of the date when made or deemed madearise.
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