Forbearance. (a) During the Forbearance Period (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lenders.
Appears in 1 contract
Sources: Credit Agreement (Orius Corp)
Forbearance. On the terms and conditions hereof (aincluding, without limitation, the conditions precedent set forth in Section 8 below) During and continuing to, but not including, the Forbearance Period Termination Date (as defined below), the Agent, the Collateral AgentLandlord, the Facing Agent Required Lenders and the Lenders will not exercise any of Owner Participant shall forbear from exercising their rights or and remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery Specified Events of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rightsDefault. For purposes of this Agreement, "The Forbearance Period" means the period commencing on the Effective Termination Date and terminating on shall mean the earlier of (ia) 12:00 Noon (New York City time) April 3015, 2002; (iib) the date of the termination of the waivers granted pursuant to that certain Amendment No. 1 and Waiver relating to the Second Amended and Restated Revolving Credit Agreement dated as of May 25, 2001 (as amended, modified and supplemented from time to time, the "Credit Agreement") among Foster Wheeler LLC, Foster Wheeler USA Corporation, Foster Energy I▇▇▇▇▇▇▇▇▇▇▇▇, Foster ▇▇▇▇▇▇▇ ▇▇▇▇▇y Corporation, the ▇▇▇▇▇ntors signatory thereto, ▇▇▇ ▇▇▇▇▇▇▇ signatory thereto, Bank of America, N.A. as administrative agent, First Union National Bank, as syndication agent, and ABN AMRO Bank N.V., as documentation agent, arranged by Banc of America Securities LLC, as lead arranger and book manager, and ABN AMRO Bank N.V., First Union Capital Markets, Greenwich Natwest Structured Finance Inc. and Toronto Dominion Bank, as arrangers; (c) the occurrence of an Additional Default any default with respect to any Indebtedness (as defined below) under in the Credit Agreement; (iii) of any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder Restricted Entity (as such terms are defined in the Senior Subordinated Note IndentureCredit Agreement) exercises or the occurrence of any rights event or remedies under condition which results in the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced maturity of any Indebtedness of any Restricted Entity or enables the holder of such Indebtedness or any person acting on such holder's behalf to accelerate the maturity thereof; (d) the payment by the Senior Subordinated DocumentsTenants or any of their Subsidiaries of any principal of Indebtedness of any Restricted Entity other than payment under the Master Lease; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vie) the occurrence of (or the Lenders' awareness a breach by any Tenant of any facts covenant, term, condition or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on other provision of this Agreement; and (Af) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability occurrence of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability Event of Default (other than in accordance with its termsthe Specified Events of Default) of under the Credit Agreement Master Lease or any of the Loan Documents or other Operative Documents. Without limiting in any way the rights or and remedies of the Agent, the Collateral AgentLandlord, the Facing Agent Lenders and the Lenders thereunder. The forbearance Owner Participant hereunder, the provisions set forth in of Section 4 of this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by shall terminate on the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent Termination Date and the Lendersall other terms and conditions contained herein shall survive.
Appears in 1 contract
Forbearance. (a) During Effective as of the Forbearance Period Effective Date (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant subject to the terms and conditions ofof this Agreement and in reliance upon the representation and warranty of the Borrower set forth in Section 4 below, the Senior Subordinated Note Indenture, undersigned Lenders and the enforcement Agent at the direction of the Required Lenders hereby agree to forbear (the “Forbearance”) from taking any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default 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 8, 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 payment is made by Borrower of the Warehouse Facilities (as defined below)) or similar event (in each case, other than arising in connection with the Specified Defaults) occurring under any Credit Party under of the Warehouse Facilities or in (y) any forbearance given with respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or Specified Defaults under any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by Warehouse Facilities shall cease to be effective;
(d) the Senior Subordinated Documentsfailure of the Borrower to comply with any term, condition or covenant set forth in this Agreement; and
(ve) the failure of any representation or warranty made by any of the Credit Parties Borrower under this Agreement or to be true in all material respects (or, in the case of any agreementrepresentation and warranty qualified by materiality, instrument or other document executed or delivered by any in all respects) as of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect date when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lenders.
Appears in 1 contract
Forbearance. From the execution and delivery of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 12 hereof (a) During such period, the “Forbearance Period (as defined belowPeriod”), the Agentas long as no Forbearance Default occurs, the Collateral Agent, the Facing Agent and the Lenders will not exercise Holders hereby agree to refrain from exercising any of their rights or remedies under the Securities that may exist as a result of any Event of Default (including, without limitation, under Section 7.21 of as such term is defined in the Credit Agreement Notes and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery Certificate of a Payment Blockage NoticeDesignations, as defined in and applicable), including converting the Notes into shares of Common Stock pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rightsSection (6)(b) thereof or otherwise. For purposes purpose of this Agreement, "a “Forbearance Period" Default” means any of the period commencing on the Effective Date and terminating on the earlier of following: (i) April 30the Company or any of its Subsidiaries making a general assignment for the benefit of creditors or consenting to the appointment of a receiver, 2002liquidator, custodian, or similar official of all or substantially all of its properties, or the Company or any of its Subsidiaries commencing any action or proceeding or taking advantage of or filing under any federal or state insolvency statute seeking to have an order for relief entered with respect to it or seeking adjudication as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution, administration, a voluntary arrangement or other relief with respect to it or its debts; (ii) the occurrence commencement against the Company or any of its Subsidiaries of any action or proceeding of the nature referred to in clause (i) above or seeking the issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its property which results in the entry of an Additional Default order for relief which remains undismissed, undischarged or unbonded for a period of sixty (as defined below60) under the Credit Agreementdays; (iii) any payment is made by Borrower the initiation of the dissolution or other winding up of the Company or any Credit Party under of its Subsidiaries, whether voluntary or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, involuntary and whether or any other Senior Subordinated Document, not involving insolvency or the Trustee bankruptcy proceedings; or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate initiation of any assignment for the Forbearance Period following an acceleration benefit of creditors or any marshalling of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation material assets or warranty made by any material liabilities of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement Company or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersits Subsidiaries.
Appears in 1 contract
Sources: Preferred Stock, Warrant and Note Termination Agreement (Paradigm Holdings, Inc)
Forbearance. The Company has requested the Noteholders agree to forbear from exercising rights and remedies arising as a result of the occurrence of any Events of Default under the Note Purchase and Guarantee Agreement caused solely by the failure of the Company to comply with (a) During the Forbearance Period (as defined belowprovisions of Section 7.11(a), the Agent(b), the Collateral Agent, the Facing Agent (c) and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 e) of the Credit Agreement and and/or the documents executed pursuant thereto) under provisions of Section 8.1 or Section 8.4 of the Credit Agreement, and (b) the Loan Documents or applicable law provisions of Section 10.4, 10.5 and Section 10.6 of the Note Purchase and Guarantee Agreement, in each case, with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date date hereof and terminating continuing until the earliest date on which any of the earlier of following events occur: (i) April 30, 2002any Event of Default (other than those Events of Default specified in clauses (a) and (b) above) under the Note Purchase Agreement or the Credit Agreement; (ii) the occurrence termination of an Additional Default (as defined below) under the Credit AgreementMerger Agreement for any reason; (iii) any payment is made default by Borrower the Company under the Subordinated Loan Agreement or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined document executed in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable lawconnection therewith; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced any failure by the Senior Subordinated DocumentsCompany to comply with the terms of this Consent and Forbearance Agreement; (v) any material breach of any representation or warranty made by the Company under this Consent and Forbearance Agreement; or (vi) any default under the Bank Waiver (as defined below) or any termination of any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and waivers granted thereunder (items (i) - (vi) are individually and collectively referred to as a "FORBEARANCE DEFAULT"). The period from and after the date hereof until, but excluding, the date of the occurrence of (or any Forbearance Default shall be known as the Lenders' awareness "FORBEARANCE PERIOD". During the Forbearance Period, but not thereafter, the Noteholders agree to forbear from exercising any rights and remedies arising as a result of the occurrence of any facts or Events of Default specified in clauses (a) and (b) above, subject to the terms and conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement Consent and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersAgreement.
Appears in 1 contract
Sources: Consent and Forbearance Agreement (Resortquest International Inc)
Forbearance. (a) During Subject to the Forbearance Period (as defined below)satisfaction of the conditions precedent set forth in Section 2 hereof, the Agent, the Collateral Agent, the Facing Agent Administrative Agents and the Lenders will not exercise hereby agree to forbear from taking any of their rights or remedies (including, without limitation, under Section 7.21 the “Enforcement Actions” defined below as a result of the Credit Agreement occurrence and continuation of the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Specified Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means solely during the period commencing beginning on the Effective Date and terminating on ending immediately upon the earlier earliest of (isuch period being referred to herein as the “Forbearance Period”): (a) April 30A▇▇▇▇ ▇▇, 2002; ▇▇▇▇, (ii▇) the occurrence of an Additional any Default (as defined belowunder Section 8.01(f) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its termsg) of the Credit Agreement or with respect to any Domestic Loan Party and (c) the termination of the Loan Documents or Forbearance Period by the rights or remedies of Domestic Administrative Agent, acting at the Collateral Agentdirection of the Required Lenders, due to: (i) the Facing Agent and occurrence of any Default other than the Lenders thereunder. The forbearance provisions Specified Defaults or (ii) the failure of any Domestic Loan Party to timely comply with any undertaking set forth in this Section 3(a) shallAgreement, as or the breach by any Domestic Loan Party in any material respect of the Effective Date, supersede in their entirety the forbearance provisions any representation or warranty set forth in Section 3(athis Agreement, in each case unless the Required Lenders, in writing, waive such noncompliance or breach. “Enforcement Actions” shall mean any (1) commencement of judicial or non-judicial enforcement proceedings against any Domestic Loan Party with respect to the payment of any Obligations or (2) commencement of any foreclosure, enforcement or levy against or seizure or transfer of all or any portion of the Sixth Amendment Domestic Collateral; provided, that Enforcement Action shall not include any action by the Domestic Administrative Agent with respect to Amended and Restated Credit Agreement and Forbearance Agreement dated as any deposit account of February 26the Domestic Loan Parties subject to a garnishment action or similar action or proceeding with respect to claims by other creditors of the Domestic Loan Parties. “Domestic Loan Parties” shall mean, 2002 among Holdingscollectively, Borrower, Agent the Domestic Borrower and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersDomestic Guarantors.
Appears in 1 contract
Forbearance. (a) During the Forbearance Period (as defined below), the Agent, the Collateral Agent, the Facing The Administrative Agent and the Required Lenders will not exercise hereby agree, during the Forbearance Period, to forbear from (i) declaring the Obligations, all interest thereon and all other amounts payable under the Loan Documents to be due and payable as a result of the occurrence of the Subject Events of Default and (ii) (A) terminating any obligation of their rights the Lenders to make Loans and any obligation of the Issuer to issue Letters of Credit, or remedies (includingB) demanding that the Borrower pay to the Administrative Agent an amount equal to the Letter of Credit Exposure outstanding on the Forbearance Effective Date, without limitation, as a result of the occurrence of the Subject Events of Default and (iii) instituting any judicial or non-judicial action or proceeding to enforce or obtain payment of the Obligations or to enforce the Administrative Agent’s security interests as a result of the Subject Events of Default.
(b) Each of the following shall constitute a “Forbearance Termination Event” under Section 7.21 this Agreement:
(i) the Borrower shall fail to make any payment of principal due under the Credit Agreement and or this Agreement (including any payment required to reimburse the documents executed Issuer or any Lender for any disbursement made by the Issuer pursuant theretoto any Letter of Credit);
(A) the Borrower shall fail to make any payment of interest due under the Credit Agreement, Agreement or (B) the Loan Documents or applicable law with respect Borrower shall fail to the Disclosed Defaults make payment of any amount (other than delivery of a Payment Blockage Noticeprincipal or interest) payable hereunder, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; Agreement or under any other Loan Document after such amount becomes due in accordance with the terms hereof or thereof, and such failure shall continue unremedied for a period of three (3) or more Business Days;
(iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made or deemed made by the Borrower herein or which is contained in any of the Credit Parties under this Agreement certificate, document or any agreement, instrument financial or other document executed statement furnished by the Borrower at any time under or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading shall prove to have been inaccurate in any material respect when on or as of the date made or deemed made;
(iv) the Borrower shall default in the observance or performance of any other covenant or agreement contained in this Agreement, and such default shall continue unremedied for a period of three (3) or more Business Days after notice to the Borrower from the Administrative Agent;
(v) the commencement of any action or proceeding against the Administrative Agent or any Lender by the Borrower, any of its affiliates or any entity controlled by or under common control with the Borrower; and or
(vi) the occurrence of (or the Lenders' awareness an Event of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than Default specified in accordance with its terms) Article 8 of the Credit Agreement or Agreement, other than the Subject Events of Default.
(c) Upon the occurrence of any of the Loan Documents or the rights or remedies of AgentForbearance Termination Event, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth agreements contained in Section 3(a) hereof shall automatically terminate and the Administrative Agent, at the direction of the Sixth Amendment Required Lenders in their sole discretion, may, without presentment, demand, protest or notice to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, the Borrower, Agent all of which are hereby waived,
(i) declare all Obligations due and payable and the Lenderssame shall forthwith become due and payable without presentment, demand, protest or notice, (ii) demand that the Borrower pay to the Administrative Agent an amount equal to the Letter of Credit Exposure, (iii) curtail or eliminate the Commitments and/or any or all of the Extensions of Credit, and (iv) take whatever other action it shall deem appropriate as amended permitted by applicable law or by any agreement, document or instrument executed and delivered pursuant to or in connection with the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersObligations.
Appears in 1 contract
Forbearance. (a) During Subject to all of the Forbearance Period (as defined below)terms and conditions set forth herein, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise agree to forbear from exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely on the occurrence of the Specified Defaults until that date (the “Forbearance Termination Date”; the period from the Effective Date (as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)) which is the earliest to occur of the following: (1) the date on which any Default other than (i) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of their rights or remedies the Addendum to the Loan Agreement; (2) the failure of any Borrower to comply with any term set forth in this Agreement, including, without limitation, under the undertakings set forth in Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 20022 hereof; (ii3) the occurrence of date that any Borrower joins in, assists, cooperates or participates as an Additional Default (as defined below) under adverse party or adverse witness in any suit or other proceeding against the Credit Agreement; (iii) Agent, any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated NotesLender, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration affiliate of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties foregoing relating to any Obligations or any amounts owing hereunder, under this the Loan Agreement or under any agreement, instrument other Loan Document or other document executed in connection with or delivered by related to any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) transactions contemplated by the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed in connection with this Agreement; (4) the date any third party exercises any right or remedy it may have as a result of any of the Specified Defaults or any of the events or omissions that constitute the Specified Defaults (including, without limitation and in any event, accelerating the payment of any Indebtedness, declaring an “event of default”, exercising default remedies with respect to any collateral security); or (5) 12:01 A.M. (New York time) on February 22, 2010. On and after the Forbearance Termination Date, the Agent and each of the Lenders may proceed, without any requirement for notice to the Borrowers or any other obligor, to enforce any or all of their rights and remedies under or in respect of this Agreement, the Loan Agreement, any of the other Loan Documents or the rights or remedies of Agentapplicable law, including, without limitation, the Collateral Agent, right to require that the Facing Agent Borrowers repay immediately any amounts then owing under the Loan Agreement and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersother Loan Documents.”
Appears in 1 contract
Sources: Forbearance Agreement (Capital Growth Systems Inc /Fl/)
Forbearance. At the request of the Borrowers, OLFJV and MIF:
(a) During the Forbearance Period (as such term is defined below), the Agent, the Collateral Agent, the Facing Agent each of JDN and the Lenders will not exercise Guaranty Corp agree to forebear from exercising any of their respective rights or remedies remedies, whether legal, equitable, or contractual, or seeking recourse against the Borrowers, OLFJV or MIF or any of Borrowers’ or OLFJV’s assets securing the Mortgage Loan and the Development Loan, by way of subrogation or otherwise, if such Guarantor is called upon to make any payment in connection with or pursuant to any of the Development Loan Guaranties, the Mortgage Loan Guaranties, or the Indemnity Agreement; and, each of JDN and Guaranty Corp hereby waives any and all rights it might have (whether arising directly or indirectly, by operation of law, contract or otherwise) to assert, during the Forbearance Period, any claim against the Borrowers, OLFJV or MIF or any of Borrowers’ or OLFJV’s assets on account of any payments made by such Guarantor in connection with or pursuant to the Development Loan Guaranties, the Mortgage Loan Guaranties, or the Indemnity Agreement, including, without limitation, under Section 7.21 any and all rights of subrogation, reimbursement, exoneration, contribution, or indemnity. “Forbearance Period” shall mean the period of time from the date of this Agreement until the earliest to occur of any of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of following: (i) April 30December 31, 20022010; (ii) the occurrence appointment by the board of an Additional Default directors of MIF of a trustee in connection with the transfer of any of the assets of MIF to a liquidating trust, effective ninety (as defined below90) under days after the Credit Agreementdate of such transfer; (iii) the date of the filing of any payment is made petition in bankruptcy, whether voluntary or involuntary, by or against any Borrower or any Credit Party under MIF; or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration date of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness assignment of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) assets of MIF for the business, financial condition, assets, liabilities, prospects or results benefit of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lenderscreditors.
Appears in 1 contract
Forbearance. Subject to the terms and conditions set forth herein, the Administrative Agent, the Collateral Agent and the Lenders party hereto agree to forbear from exercising their rights and remedies under the Credit Agreement and the other Credit Documents solely with respect to the Designated Events of Default until October 30, 2009 (such date, subject to the following proviso, the “Forbearance Termination Date”); provided, that the Forbearance Termination Date shall be automatically accelerated to the date of the earliest to occur of any of the following events: (a) During the Forbearance Period occurrence after the date hereof of any Default or Event of Default other than the Designated Events of Default, (b) the failure of the Borrower or any of the other Credit Parties to comply with any term, covenant or provision set forth in this Agreement, including, without limitation, those set forth in Section 1.02 and Section IV hereof, (c) the occurrence after the date hereof of any payment by or on behalf of the Borrower of any interest or other amounts (whether in cash, by capitalizing such interest or other amounts or otherwise) to the holders of (x) the Spinco Senior Notes or (y) the 13 1/8% Senior Notes issued by the Borrower pursuant to the Indenture, dated as defined below)of July 29, 2009, between the Borrower and U.S. Bank National Association, as trustee, (d) the occurrence after the date hereof of any payment by or on behalf of the Borrower of any amounts payable under or in respect of any Secured Interest Rate Agreement and (e) the date that any of the Credit Parties or any of their respective affiliates joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Administrative Agent, the Collateral Agent, the Facing Lenders or any affiliate of the Administrative Agent, the Collateral Agent or any Lender relating to the Obligations or in respect of any amounts owing under or in connection with the Credit Agreement, the other Credit Documents, this Agreement or any documents, agreements or instruments executed in connection therewith. On and after the Forbearance Termination Date, the Administrative Agent, the Collateral Agent and each of the Lenders will not exercise party hereto may proceed to enforce any and/or all of their rights and remedies under or remedies (in respect of the Credit Agreement, the other Credit Documents and applicable law, including, without limitation, under Section 7.21 of the Credit Agreement right to require that the Borrower repay immediately any amounts then due and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect owing to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Administrative Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as without the giving of notice or the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) expiration of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersany applicable grace period.
Appears in 1 contract
Sources: Forbearance Agreement (Fairpoint Communications Inc)
Forbearance. A. Bank agrees to continue to forbear from exercising it remedies available to it as a result of Borrower's default under the Loan Agreement prior to April 30, 1998 and to forbear from exercising its remedies available to it as a result of Borrower's existing defaults of Sections 6.8, 6.9, 6.10, 6.11 and 6.15 under the Loan Agreement, (the foregoing being referred to as "Existing Defaults") or any future breaches under the Existing Loan Documents, as modified by this Loan Modification, Consent and Forbearance Agreement (as so modified, the "Loan Documents") until the earlier of (a) During December 31, 1998 or (b) the consummation of the merger and related transactions (the "Merger") as described in that certain Agreement and Plan of Merger, dated August____, 1998, by and among Acquiror, AQX Acquisition Corporation and Versatility, Inc. (the "Merger Agreement"). Notwithstanding the foregoing, the Forbearance Period will terminate upon (as defined below)a) Borrower's filing with any bankruptcy court of competent jurisdiction or becoming the subject of any petition under the Bankruptcy Code, (b) Borrower's filing or becoming the Agentsubject of any petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or other relief for debtors, (c) Borrower's seeking, consenting to, or acquiescing in the Collateral Agentappointment of any trustee, receiver, conservator or liquidation, (d) Borrower's becoming the Facing Agent and the Lenders will not exercise subject of any order, judgment or decree entered by any court of their rights competent jurisdiction approving a petition filed against Borrower for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or remedies similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or relief for debtors, or (including, without limitation, under Section 7.21 e) termination of the Credit Merger Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect prior to the Disclosed Defaults other than delivery consummation of a Payment Blockage Notice, as defined in and pursuant the Merger according to the terms and conditions ofof Merger Agreement ("Merger Closing").
B. Upon termination of the Forbearance Period, Bank may, at its option, exercise its rights under the Senior Subordinated Note IndentureLoan Documents, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; provided, however, that Bank shall notify Acquiror, Acquiror's counsel, Borrower, and Borrower's counsel (ivas listed on Exhibit "A") notification by Agent to Borrower in writing that the Required Lenders have elected ten (10) days prior to terminate the Forbearance Period following an (a) its acceleration of any amounts due to Bank, (b) Bank's taking any other action to collect any cash amounts or realize the indebtedness evidenced benefit of any security interest in Borrower's assets or (c) the exercise by Bank of any other rights under the Senior Subordinated Loan Documents; (v) any representation or warranty made by . Bank understands that it is a condition to Acquiror's obligation to close the Merger that Bank not undertake any of the Credit Parties actions described in the preceding sentence.
C. As consideration for Bank's agreement to forbear on exercising its remedies, Borrower hereby renounces and waives all rights that are waivable under this Agreement Article 9 of the Code of any jurisdiction in which any Collateral may now or hereafter be located. Without limiting the generality of the foregoing, Borrower hereby (a) renounces any agreementright to receive notice of any disposition by Bank of the Collateral pursuant to Section 9-504(3) of the Code upon termination of the Forbearance Period, instrument whether such disposition is by public or private sale under the Code or otherwise, and (b) waives any rights relating to compulsory disposition of the Collateral pursuant to Sections 9-504 and 9-505 of the Code.
D. In addition, Borrower hereby agrees that if it shall (a) file with any bankruptcy court of competent jurisdiction or be the subject of any petition under the Bankruptcy Code, (b) file or be the subject of any petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or other document executed relief for debtors, (c) seek, consent to, or delivered by any of acquiesce in the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness appointment of any facts trustee, receiver, conservator or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a partyliquidation, or (Cd) be the validity subject of any order, judgment or enforceability (other than in accordance with its terms) decree entered by any court of competent jurisdiction approving a petition filed against Borrower for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or relief for debtors, Bank shall thereupon be entitled to relief from any automatic stay imposed by Section 362 of the Credit Bankruptcy Code, or from any other stay or suspension of remedies imposed in any other manner with respect to the exercise of the rights and remedies otherwise available to Bank under the Loan Documents.
E. By signing below, Borrower acknowledges that the Indebtedness currently is in default and as a result of such default and subject to the terms of this Loan Modification, Consent and Forbearance Agreement or any of and the April 1998 Loan Modification Agreement, Bank is entitled to exercise its remedies as provided in the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunderas provided under applicable law. The forbearance provisions set forth Nothing in this Section 3(aagreement in any way shall constitute Bank's waiver of Borrower's Existing Default under the Existing Loan Documents except as may have been waived in the April 1998 Loan Modification Agreement. In addition, Bank's agreement to continue to forbear from enforcing its remedies under the Existing Loan Documents until December 31, 1998, notwithstanding Borrower's Existing Defaults under the Existing Loan Documents, (a) shallin no way shall be deemed an agreement by Bank to waive Borrower's compliance with all other terms of the Existing Loan Documents, as of the Effective Datemodified by this Loan Modification, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement Consent and Forbearance Agreement dated and the April 1998 Loan Modification Agreement and (b) shall not limit or impair Bank's right to demand strict performance of all other terms and covenants as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersany date.
Appears in 1 contract
Forbearance. 5.1 Subject to the terms and conditions hereof, the Lender agrees to forbear from taking any Enforcement Action, including under Section 15 of the Secured Bridge Note or Section 6.2 of the Pledge Agreement or otherwise under the Loan Documents or under applicable law or at equity with respect to the Specified Events of Default, in each case, until the date (the “Forbearance Termination Date”) that is the earliest of:
(a) During the Forbearance Period October 1, 2009;
(b) The Equity Offering (as defined below)in Section 6.5) does not result in net cash proceeds to the Borrower (after deduction of selling expenses, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, underwriting fees and discounts, brokerage commissions and other similar fees and commissions) (“Equity Offering Net Proceeds”) of at least $3,000,000 or is not completed on or before October 1, 2009;
(c) the date on which the Obligations are paid in full in cash;
(d) the occurrence of a breach or default by the Borrower under Section 7.21 this Agreement other than as specified in clause (g) below;
(e) Borrower or any of its Subsidiaries fails to observe or perform any agreement or condition under the CoBank Loan Documents beyond the expiration of any applicable grace period, or any default or other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of the Credit Agreement and the documents executed pursuant thereto) Indebtedness under the Credit Agreement, the CoBank Loan Documents to cause, with the giving of notice if required, such Indebtedness to be demanded or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Noticebecome due or to be repurchased, as defined in and pursuant prepaid, defeased or redeemed (automatically or otherwise), or an offer to the terms and conditions ofrepurchase, the Senior Subordinated Note Indentureprepay, and the enforcement of any rights with respect defease or redeem such Indebtedness to such Payment Blockage Notice and any other actions reasonably related be made, prior to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of its stated maturity; or
(i) April 30, 2002; (iif) the occurrence of an Additional Event of Default under clause (5) of the definition thereof in the Secured Bridge Note; or
(g) the delivery to Borrower by Lender (at its discretion) of written notice (a “Forbearance Termination Notice”, which may be delivered by electronic mail) that the forbearance contemplated by this Article V is terminated as the result of the occurrence of an Event of Default (as defined belowother than an Event of Default under clause (5) under of the Credit Agreement; definition thereof in the Secured Bridge Note) that does not constitute a Specified Event of Default (iiiit being understood and agreed that (i) any payment is made failure by Borrower or any Credit Party under or in Lender to deliver a Forbearance Termination Notice with respect to any Event of Default shall not be deemed to waive or otherwise limit or impair the Senior Subordinated Note Indenturerights and remedies of Lender with respect to such Event of Default (except as expressly provided in this clause (g)) and (ii) Lender may deliver its Forbearance Termination Notice with respect to an Event of Default (other than an Event of Default under clause (5) of the definition thereof in the Secured Bridge Note) that does not constitute a Specified Event of Default at any time after the occurrence of such Event of Default so long as such Event of Default is continuing and has not been cured or waived in accordance with the Secured Bridge Note, and any delay in delivering such Forbearance Termination Notice shall not be deemed a waiver of, or to otherwise limit or impair, the Senior Subordinated Notes, or any other Senior Subordinated Document, right of Lender to deliver such Forbearance Termination Notice or the Trustee effect of such delivery when so made at such future time.
5.2 The Borrower acknowledges, reaffirms and agrees that upon the occurrence of an event triggering the Forbearance Termination Date pursuant to Section 5.1 other than under clauses (a) or any Holder (as c) of such terms are defined in Section, such Forbearance Termination Date shall be deemed to have occurred immediately prior to the Senior Subordinated Note Indenture) exercises any applicable default and this Agreement shall terminate and the Lender shall be entitled to commence and exercise immediately all of its rights or and remedies under the Senior Subordinated Loan Documents or and under applicable law; law or at equity (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreementincluding, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings any and its Subsidiaries taken as a whole, all Enforcement Actions and (B) the ability right to re-institute the per annum rate of any Credit Party interest of eighteen percent (18.0%) on the outstanding Obligations, calculated in the manner set forth in Section 1 of the Secured Bridge Note retroactive to perform its respective obligations under any Loan Document the Maturity Date of the Secured Bridge Note, that was in effect immediately prior to which it is a partythe Forbearance Effective Date; provided, or (C) and the validity or enforceability (other than parties hereto acknowledge, confirm and agree, that the amount of interest that shall have been deemed paid-in-kind in accordance with its terms) Section 6.1 shall accrue and compound at the per annum rate of interest of eighteen percent (18.0%)).
5.3 The Borrower acknowledges, reaffirms and agrees that, unless and until the Lender, in accordance with Section 17 of the Credit Agreement Secured Bridge Note, shall have waived in writing all Events of Default then in existence, the determination to give such waiver being at the Lender’s sole and absolute discretion, the Lender reserves all rights and remedies available to it under the Loan Documents and under applicable law or at equity (i) with respect to the Specified Events of Default and (ii) with respect to any Default or Event of Default under any of the Loan Documents which upon the Borrower’s execution and delivery of this Agreement might otherwise exist or which might hereafter occur. The failure of the Lender at any time or times hereafter to require strict performance by the Borrower of any of the provisions, warranties, terms and conditions contained in this Agreement, the Secured Bridge Note, the Pledge Agreement or any other Loan Document shall not waive, affect or diminish any right of the Lender at any time or times thereafter to demand strict performance thereof. No waiver by the Lender of any of its rights shall operate as a waiver of any other of its rights or remedies any of Agent, the Collateral Agent, the Facing Agent its rights on a future occasion at any time and the Lenders thereunderfrom time to time. The forbearance provisions set forth terms, conditions and events described in this Section 3(a) shall, as 5.3 are currently in full force and effect without regard to or the assent of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersBorrower or any other Person.
Appears in 1 contract
Forbearance. (a) During The Lenders hereby agree from and after the Forbearance Period (as defined below), date of execution of this Agreement until the Agent, conversion into equity of the Collateral Agent, Second Conversion Amount to forbear in the Facing Agent and the Lenders will not exercise of any of their rights or remedies (includingremedies, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, whether granted in the Loan Documents or applicable law under law, with respect to the Disclosed Defaults Company or any of its assets (the “Forbearance Period”), other than delivery the exercise of the Permitted Remedies. As used herein, the “Permitted Remedies” shall be limited solely to (i) the exercise of the Lenders rights and remedies under applicable law to conduct a Payment Blockage Notice, public foreclosure sale as defined in and to all collateral securing the Optex-Texas Guaranty pursuant to the terms of Section 4.5 below and conditions of, (ii) to enforce the Senior Subordinated Note Indenture, terms of this Agreement and (iii) to obtain the enforcement benefits of the continuing indemnification obligations of the Company to Lenders as described in Section 2.2. The Forbearance Period shall terminate automatically upon the occurrence of any rights of the following events: (i) the commencement by the Company or Optex-Texas of a voluntary proceeding seeking relief with respect to such Payment Blockage Notice and itself or its debts under any bankruptcy, insolvency or similar law, or seeking appointment of a trustee, receiver, liquidator or other actions reasonably related similar official for it or any substantial part of its assets; or its consent to any of the enforcement foregoing in any involuntary proceeding against it; or makes an assignment for the benefit of, or the offering to or entering into by. the Company or Optex-Texas of such rights. For purposes any reorganization with its creditors, (ii) commencement of this Agreement, "Forbearance Period" means an involuntary proceeding against the period commencing on Company or Optex-Texas of the Effective Date and terminating on the earlier of kind described in clause (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreementabove; (iii) the Company or Optex-Texas makes any payment is made by Borrower or any Credit Party under or in respect on account of the obligations owed to the Senior Subordinated Note IndentureLooney on TWL Group, the Senior Subordinated NotesL.P., or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent Looney or TWL Group, L.P. take any judicial actions to Borrower impede the foreclosure against the Optex Texas Collateral described in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; Section 4.3 below, or (v) any representation or warranty made by any of 180 days after the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersdate hereof.
Appears in 1 contract
Sources: Memorandum of Understanding (Irvine Sensors Corp/De/)
Forbearance. (a) During the Forbearance Period (as defined below)As used herein, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "term “Forbearance Period" means ” shall mean the period commencing on the Effective Date date hereof and terminating ending on the earlier to occur of (i) April 30August 15, 2002; 2012 (5:00 p.m. New York time), and (ii) the occurrence of an Additional any one or more of the following events: (A) the occurrence of any Default (as defined below) or Event of Default under the Credit Agreement, other than the Designated Defaults; (iiiB) any payment is failure by the Borrower for any reason to comply with any term, condition, or provision contained in this Agreement; (C) any failure by any other party to this Agreement, other than the Administrative Agent, Lenders or Borrower, for any reason to comply with any term, condition, or provision contained in this Agreement; (D) any representation made by Borrower the Borrower, any Guarantor or the Shareholder in this Agreement or pursuant to any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, other Loan Document or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is pursuant thereto proves to be incorrect or misleading in any material respect when made made; (E) any Material Adverse Effect shall occur as determined in good faith by the Administrative Agent or deemed madethe Required Lenders; and (viF) any act of fraud, intentional misrepresentation, criminal misconduct or gross negligence by the Borrower, any Guarantor or the Shareholder. The occurrence of (or any of the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on events set forth in clauses (A) through (F) above shall constitute an immediate Event of Default under the business, financial condition, assets, liabilities, prospects or results of operations of Holdings Credit Agreement and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations Forbearance Period is automatically terminated and the Administrative Agent and Lenders are then permitted and entitled under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) Section 7 of the Credit Agreement or and the other Loan Documents, among other things, to decline to provide additional credit to the Borrower, to permanently terminate the Commitments, to accelerate the Obligations, to require cash collateral for outstanding Letters of Credit, and to exercise any of other rights and remedies that may be available under the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersapplicable law.
Appears in 1 contract
Sources: Limited Forbearance Agreement and Fourth Amendment to Credit Agreement (Champion Industries Inc)
Forbearance. (ai) During In reliance upon the Forbearance Period (as defined below)undertakings, representations, warranties, and covenants of each Loan Party contained in this Agreement, and subject to the terms and conditions of this Agreement and any documents or instruments executed in connection herewith, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of agree to forbear from further exercising their respective rights or and remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with in respect to of or arising out of the Disclosed Forbearance Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means for the period commencing on the Effective Date and terminating ending on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default Forbearance Termination Date (as defined below) under (the Credit Agreement“Forbearance Period”).
(ii) As used herein, the “Forbearance Termination Date” means the date that is the earliest of: (a) January 29, 2024; (iiib) the date on which any Loan Party commences, or threatens in writing to commence, any litigation against the Agent or any Lender; (c) the date on which any Loan Party takes any action inconsistent with the Agent’s or any Lender’s interests in the Collateral; (d) the commencement of any Insolvency Proceeding by or against any Loan Party; (e) any payment is made by Borrower or any Credit Party under or in respect amendment to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated DocumentLoan Parties’ Operating Documents, or the Trustee Company’s entry into any stockholders agreement or other Operating Document, which in any Holder way amends or alters (other than such amendments or agreements as such terms are defined required in order to give effect to the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration provisions of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of and which shall be reasonably acceptable to the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (viAgent) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the businesscomposition of the Loan Parties’ Governing Bodies, financial condition, assets, liabilities, prospects including providing any stockholder or results of operations of Holdings and its Subsidiaries taken as other Person with any right to designate a wholedirector, (B) the ability relative voting rights of any Credit Party to perform its respective obligations under any Loan Document to which it is a partymembers of such Governing Bodies or stockholders, or (C) the validity terms of the Loan Parties’ governance, or enforceability (f) the occurrence or existence of any Default or Event of Default hereunder or under any Loan Document, or any event or circumstance which, with notice or the passage of time, shall become an Event of Default (an “Unmatured Default”), other than in accordance with its terms) the Forbearance Defaults. For purposes of clarity, failure of the Credit Agreement or Loan Parties to satisfy any of the Loan Documents or the rights or remedies covenants herein will constitute an immediate Event of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as Default for purposes of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by determining the Forbearance Extension Agreement dated as Termination Date. An “Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any Debtor Relief Law, or any agreement of March 12, 2002 among Holdings, Borrower, Agent and the Lenderssuch Person with respect to relief available under any Debtor Relief Law.
Appears in 1 contract
Forbearance. (a) During the Forbearance Period Period
(as defined below), 1) none of the Collateral Agent, Lender, Daiwa, or any Participant shall (A) exercise any rights or remedies pursuant to the Program Documents with respect to any Existing Defaults, or (B) prior to the occurrence and continuation of a Servicer Termination Event, sell or direct or instruct the sale of any of the Designated Receivables, except as provided in Section 4.6 of this Supplement, and (ii) interest on the Note shall accrue at the Interest Rate as if none of the Existing Defaults occurred or are continuing, provided, that, upon the occurrence of a Servicer Termination Event interest on the Note shall accrue, from and after the Effective Date, at the interest rate applicable for the occurrence and continuation of an Event of Default. From and after the Expiration Date, each of the Collateral Agent, the Facing Agent Lender, Daiwa, and the Lenders will not any Participant may exercise any of their rights or remedies (including, without limitation, under Section 7.21 that it may have pursuant to any of the Credit Agreement and Program Documents as a result of any of (i) the documents executed pursuant theretoExisting Defaults or (ii) under the Credit Agreement, the Loan Documents any Event of Default or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, Servicer Termination Event as defined in and pursuant to the terms and conditions ofCredit Agreement or the Servicing Agreement, respectively. Notwithstanding the Senior Subordinated Note Indentureforegoing, in the event the Borrower becomes subject to, and the enforcement of any rights is a debtor, directly or by consolidation with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, West or any other Senior Subordinated Documentaffiliate of West in any bankruptcy proceeding, or each of the Trustee or Collateral Agent, the Lender, Daiwa, and any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises Participant may exercise any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent that it may have pursuant to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreementAgreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Servicing Agreement or any of the Loan Program Documents provided that none of them shall take any action or consent to any action that results or may result in (i) the rights liquidation or sale of any of the Designated Accounts other than as provided in this Supplement, (ii) removal of the Servicer other than as provided in this Supplement, (iii) any reduction, limit or delay of the payment of any fees or compensation or amounts payable to the Servicer pursuant to the Servicing Agreement, or (iv) the impairment, limitation or restriction of any rights, powers or remedies of Agent, that the Collateral Agent, Servicer may have pursuant to the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersServicing Agreement.
Appears in 1 contract
Sources: Supplement to Servicing Agreement (Encore Capital Group Inc)
Forbearance. (a) During The Borrower and Related Parties hereby acknowledge and agree that the Forbearance Period (as defined below)Existing Defaults have occurred and are continuing, and but for the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any terms of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit this Agreement, the Loan Documents or applicable law with Lender may, if it so elects, exercise any and all of its rights and remedies in respect of the Existing Defaults. Subject to the Disclosed Defaults other than delivery all of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions ofset forth in this Agreement, Lender agrees to forbear from exercising its rights and remedies under the Senior Subordinated Note Indenture, Amended Loan Agreement and the enforcement other Loan Documents that are based solely on the occurrence of the Existing Defaults during the period (the “Forbearance Period”) from the Effective Date through that date (the “Forbearance Termination Date”) which is the earliest to occur of the following: (1) June 6, 2014; (2) the date on which any rights Event of Default occurs other than the Existing Defaults; (3) the failure of the Borrower to comply with respect the terms and conditions of this Agreement; or (4) the date that the Borrower or any Related Party joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Lender relating to such Payment Blockage Notice the Loans or any amounts owing pursuant to the Loan Documents, including this Agreement and any other actions reasonably related to the enforcement of such rightsdocuments, agreements or instruments executed in connection with this Agreement. For purposes of this Agreement, "Forbearance Period" an “Event of Default” means the period commencing on the Effective Date and terminating on the earlier (a) an Event of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under in the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, Amended Loan Agreement or any other Senior Subordinated Loan Document, or (b) any attempt by the Trustee or Borrower to divert any Holder (as such terms are defined in funds generated from the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration operation of the indebtedness evidenced Distillery Property to any uses other than for expenditures approved by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken Lender as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(athe Budget (hereinafter defined); or (c) shall, as the commencement of a foreclosure action by any creditors having a lien on the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersDistillery Property.
Appears in 1 contract
Forbearance. The Lender hereby agrees, subject to the terms, conditions and limitations set forth in this Agreement, to forbear from the exercise of its rights and remedies under the Credit Documents for a period (the “Forbearance Period”) commencing as of the effective date hereof and continuing until the date (the “Forbearance Termination Date”) which is the earlier of (a) During December 10, 2006 (the “Scheduled Forbearance Period (as defined belowTermination Date”), (b) the Agent, occurrence of a Default or Event of Default (other than the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant theretoSpecified Defaults) under the Credit AgreementDocuments, (c) the Loan Documents or applicable law failure of any Credit Party to comply with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms or conditions of this Agreement or the Credit Documents, if and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of as modified by this Agreement, "Forbearance Period" means (d) any further material adverse change in the period commencing on financial condition or business prospects of the Effective Date and terminating on the earlier of Credit Parties shall occur, (i) April 30, 2002; (iie) the occurrence of an Additional Default (as defined below) under commencement after the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made date hereof by any of the Credit Parties under or any officer, director, shareholder, guarantor, subsidiary or affiliate of any the Credit Parties of any lawsuit, litigation or other proceeding against the Lender, any affiliate of the Lender or any officer, director, employee or agent of the Lender or any affiliate of the Lender in connection with the Credit Documents, this Agreement or any agreementother credit relationship between the Lender, instrument any affiliate of the Lender and any of the Credit Parties, (f) the creation or incurrence after the date hereof of any lien, security interest, mortgage or other document executed encumbrance (hereinafter an “Encumbrance”) other than Encumbrances existing on the date hereof and known to the Lender or delivered Encumbrances in favor of the Lender with respect to any of the Collateral, (g) the dissolution, liquidation, merger, consolidation or sale of all or substantially all of the properties or assets of the Borrower or the taking of any action by the Borrower or any of its officers, directors or shareholders which may result in any such corporate action by the Borrower, (h) the commencement by or against any of the Credit Parties in connection with this Agreement is incorrect of a proceeding under Federal bankruptcy law, any Federal or misleading in state insolvency law or any material respect when made or deemed made; and (vi) other law for the occurrence benefit of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a partycreditors, or (Ci) the validity sale or enforceability other disposition of any product line or other properties and assets of the Borrower (other than in accordance the normal course of business or in connection with any sale, transfer or exchange of slow-moving inventory for either cash or assets). On and after the Forbearance Termination Date, the Lender shall be free in its terms) sole and absolute discretion to exercise any of its rights and remedies as aforesaid without further notice to or demand upon the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersParties.
Appears in 1 contract
Forbearance. (ai) During In reliance upon the Forbearance Period (as defined below)undertakings, representations, warranties, and covenants of each Loan Party and each Significant Stakeholder contained in this Agreement, and subject to the terms and conditions of this Agreement and any documents or instruments executed in connection herewith, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of agree to forbear from further exercising their respective rights or and remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with in respect to of or arising out of the Disclosed Forbearance Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means for the period commencing on the Effective Date and terminating ending on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default Forbearance Termination Date (as defined below) under (the Credit Agreement“Forbearance Period”).
(ii) As used herein, the “Forbearance Termination Date” means the date that is the earliest of: (a) April 14, 2024; (iiib) the date on which any Loan Party commences, or threatens in writing to commence, any litigation against the Agent or any Lender; (c) the date on which any Loan Party takes any action inconsistent with the Agent’s or any Lender’s interests in the Collateral; (d) the commencement of any Insolvency Proceeding by or against any Loan Party; (e) any payment is made by Borrower or any Credit Party under or in respect amendment to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated DocumentLoan Parties’ Operating Documents, or the Trustee Company’s entry into any stockholders agreement or other Operating Document, which in any Holder way amends or alters (other than such amendments or agreements as such terms are defined required in order to give effect to the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration provisions of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of and which shall be reasonably acceptable to the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (viAgent) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the businesscomposition of the Loan Parties’ Governing Bodies, financial condition, assets, liabilities, prospects including providing any stockholder or results of operations of Holdings and other Person with any right to designate a director (except as may approved in writing by Agent in its Subsidiaries taken as a wholesole discretion), (B) the ability relative voting rights of any Credit Party to perform its respective obligations under any Loan Document to which it is a partymembers of such Governing Bodies or stockholders, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any terms of the Loan Documents or Parties’ governance, (f) P▇▇▇ ▇▇▇▇▇▇▇▇ LLP ceases, for any reason, to act as corporate counsel to the rights or remedies of AgentLoan Parties, (g) on the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(adate that is three (3) shall, as of days after the Effective Date, supersede if by that date the Loan Parties have not retained an interim or permanent resource to support capital markets activity reasonably acceptable to Agent in their entirety its sole discretion, or (h) the forbearance provisions set forth in Section 3(a) occurrence or existence of any Default or Event of Default hereunder or under any Loan Document, 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 Forbearance Defaults. For purposes of clarity, failure of the Sixth Amendment Loan Parties to Amended and Restated Credit Agreement and Forbearance Agreement dated as satisfy any of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by covenants herein will constitute an immediate Event of Default for purposes of determining the Forbearance Extension Agreement dated as Termination Date. An “Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any Debtor Relief Law, or any agreement of March 12, 2002 among Holdings, Borrower, Agent and the Lenderssuch Person with respect to relief available under any Debtor Relief Law.
Appears in 1 contract
Forbearance. (a) During Subject to the satisfaction of the conditions precedent set forth in Section 3 below and the continued satisfaction of the conditions set forth in Section 4 below, respectively, as of the date hereof, each Holder hereby agrees that during the period beginning on the date hereof and ending on the Forbearance Period Termination Date (as defined belowthe “Forbearance Period”), the Agent, the Collateral Agent, the Facing Agent and the Lenders it will not exercise enforce, or otherwise take any action to direct enforcement of, any of their the rights and remedies available to the Holders or remedies (the Trustee under the Indenture or the 2023 Notes or otherwise, including, without limitation, under Section 7.21 of any action to accelerate, or join in any request for acceleration of, the Credit Agreement and the documents executed pursuant thereto2023 Notes (“Remedial Action”) under the Credit AgreementIndenture or the 2023 Notes, the Loan Documents or applicable law solely with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of2023 Notes Interest Default (such forbearance, the Senior Subordinated Note Indenture“Forbearance”). As used herein, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "“Forbearance Period" Termination Date” means the period commencing on the Effective Date and terminating on the earlier of (i) April 3011:59 p.m. (New York City time) on July 15, 20022020; (ii) the occurrence of an Additional any Event of Default under the Indenture other than the 2023 Notes Interest Default (as defined below) under including, for the Credit Agreementavoidance of doubt, an Event of Default occurring due to the 2026 Notes Interest Default); (iii) the failure of any payment is made by Borrower or Note Party to comply with any Credit Party under or in respect to the Senior Subordinated Note Indentureterm, the Senior Subordinated Notescondition, or any other Senior Subordinated Documentcovenant set forth in this Agreement (including, or for the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable lawavoidance of doubt, Section 4 hereof); (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration failure of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties Note Party under this Agreement to be true and complete in all material respects (except that such materiality qualifier shall not be applicable to the extent that any representation and warranty already is qualified or modified by materiality in the text thereof) as of the date when made or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading breach in any material respect when made of any such representation or deemed madewarranty; and (v) the entry by the Issuer into any support agreement or definitive documentation with respect to, or announcement by the Issuer of its intent to pursue, any other restructuring, recapitalization, refinancing, repurchase or other material transaction in respect of any material indebtedness of the Issuer or its subsidiaries, whether through a court-supervised insolvency proceeding or otherwise, without the express written consent of each Holder; (vi) the occurrence of (or the Lenders' awareness granting of any facts additional lien on any property or conditions previously unknown with respect to) assets of the Limited Guarantor, the Issuer or any adverse change which has, of their respective subsidiaries to secure all or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) portion of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26January 30, 2002 2019 by and among Holdingsthe Issuer, Borrowerthe Limited Guarantor, Agent the subsidiary guarantors and the Lenderslenders party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as amended by administrative agent (the “Credit Facilities”); or (vii) the occurrence of the Forbearance Extension Termination Date (as defined in the Credit Facilities Forbearance Agreement dated (as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersdefined below)).
Appears in 1 contract
Sources: Forbearance Agreement (CBL & Associates Limited Partnership)
Forbearance. (a) During For purposes of this Agreement, the term “Forbearance Period” shall mean the period commencing on the Forbearance Period Effective Date (as defined below)hereinafter defined) and ending on that date (the “Forbearance Termination Date”) which is the earliest to occur of the following: (1) July 15, 2018; (2) the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise date on which any Obligor or any of their respective Subsidiaries initiates or has filed against it any bankruptcy, insolvency, assignment, foreclosure or similar proceeding under state, federal or foreign law; (3) the date on which the forbearance of the Term Loan Agent and each Term Loan Lender pursuant to the Term Loan Forbearance Agreement shall terminate, expire or otherwise cease to be effective for any reason; (4) the date on which any Obligor breaches or fails to comply with any of the terms of this Agreement as determined by the Agent or the Lenders, including, without limitation, (i) the failure by any Obligor to comply with, or any breach or violation by any Obligor of, any of the agreements or covenants set forth herein, (ii) the failure of any representation or warranty of any Obligor set forth herein to be true and correct in all material respects or (iii) the date on which any Default or Event of Default other than the Specified Defaults occurs; (5) the date on which the Term Loan Agent or any Term Loan Lender takes any action or initiates any action or proceeding to accelerate the obligations (including any Term Loan Obligations) or enforce any of its rights or remedies under the Term Loan Agreement or any other Term Loan Document or any right or remedy with respect to any collateral (including the Term Loan Priority Collateral) in respect of the Term Loan Obligations; or (6) the date on which any person or entity (including the Term Loan Agent or any Term Loan Lender) initiates any action or proceeding (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement initiation of any rights with respect advertisement for foreclosure under a power of sale in any deed of trust, mortgage, deed to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notessecure debt, or any other Senior Subordinated Document, similar instrument) to foreclose or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises otherwise enforce any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect any lien, claim of lien, deed to secure debt, mortgage, security agreement or misleading in other encumbrance (including, without limitation, any material respect when made judgment) on any assets or deemed made; and (vi) the occurrence of (or the Lenders' awareness properties of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement Obligor or any of their respective Subsidiaries. Each of the Loan Documents or Obligors hereby acknowledges and agrees that the rights or remedies execution and delivery of Agentthis Agreement has not established any course of dealing between the parties hereto and that the parties hereto do not contemplate, and, in entering into this Agreement, the Collateral AgentObligors have not relied upon, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as any potential extension of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersPeriod.
Appears in 1 contract
Forbearance. (a) During In consideration for, and subject to, compliance by the Forbearance Period Obligors with the terms and conditions of this Agreement, Lender hereby agrees to forbear from exercising its rights and remedies under the Loan Documents (except as set forth in Paragraph 7 below) and applicable law as a result of the occurrence of the Existing Events of Default until the occurrence of a Termination Event (as such term is defined below), . This forbearance is given as a one time accommodation by Lender to the Agent, the Collateral Agent, the Facing Agent Obligors and the Lenders will not exercise nothing contained herein shall require Lender to waive any Default or Event of Default or forbear from exercising any of their its rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement occurrence of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to Default or Event of Default existing on the enforcement effective date of such rights. this Agreement or occurring after the effective date of this Agreement.
(b) For purposes of this Agreement, a "Forbearance PeriodTermination Event" means shall mean ------------------ the period commencing on the Effective Date and terminating on the earlier earliest to occur of (i) April 30four weeks from the Accommodation Overadvance Funding Date, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; April 24, 2009, and (iii) any payment is made by Borrower one or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration more of the indebtedness evidenced by following:
(A) the Senior Subordinated Documents; failure of the Obligors to comply with the terms, covenants, agreements and conditions of this Agreement;
(vB) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is herein shall be incorrect or misleading in any material respect when made or deemed made; and respect;
(viC) the occurrence of any Event of Default under the Credit Agreement, other than (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (Ai) the business, financial condition, assets, liabilities, prospects or results Existing Events of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, Default or (Cii) the validity or enforceability (other than in accordance with its termsbreach by Obligors of their obligation pursuant to Section 6.1(a) of the Credit Agreement to deliver audited year end annual financial statements for the fiscal year ending December 31, 2008 within 90 days of the end of such fiscal year;
(D) Obligors shall fail to employ a CRO (as defined below) throughout the Forbearance Period;
(E) in the Lender's discretion, it determines that Parent is no longer actively pursuing a Liquidity Transaction;
(F) Obligors shall fail to deliver their quarterly financial statements for the fiscal quarter ending December 31, 2008 required by Section 6.1(b) of the Credit Agreement on or before April 1, 2009;
(G) Obligors shall fail to deliver their monthly financial statements for the months ending January 31, 2009 and February 28, 2009, as required by Section 6.1(c) of the Credit Agreement, on or before April 15, 2009; and
(H) Any Person, other than Lender, shall exercise its rights and remedies against the Obligors as a result of defaults or events of defaults arising under any agreement between Obligors and such Person due to cross-defaults arising from the Existing Events of Default.
(c) Upon the occurrence of a Termination Event, Lender's agreement to forbear from exercising its rights and remedies under the Loan Documents and applicable law shall automatically terminate, with or without notice to the Obligors.
(d) Nothing in this paragraph 2 shall be deemed a waiver by Lender of the Existing Events of Default or of future compliance by the Obligors with the covenants set forth above or otherwise set forth in the Loan Documents.
(e) This Agreement is written without prejudice as to the rights of Lender to pursue any and all remedies available to Lender pursuant to the Loan Documents, at law and in equity, upon the occurrence of a Termination Event. This Agreement shall not constitute a waiver or modification of any of Lender's rights and remedies, the Existing Events of Default, any other Default or Event of Default under the Loan Documents, or any of the terms, conditions, warranties, representations or covenants contained in the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersDocuments.
Appears in 1 contract
Sources: Forbearance Agreement (Ronson Corp)
Forbearance. Subject to the satisfaction of the conditions precedent set forth in Section 3 hereof, the Administrative Agents and the Lenders hereby agree to forbear from taking any of the “Enforcement Actions” defined below as a result of the occurrence and continuation of the Specified Defaults solely during the period beginning on the Effective Date and ending immediately upon the earliest of (such period being referred to herein as the “Forbearance Period”): (a) During December 31, 2014, (b) the Forbearance Period (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise occurrence of any of their rights or remedies (including, without limitation, Default under Section 7.21 8.01(f) or (g) of the Credit Agreement and (c) the documents executed pursuant theretotermination of the Forbearance Period by the Domestic Administrative Agent, acting at the direction of the Required Lenders, due to: (i) under the Credit occurrence of any Default other than the Specified Defaults or (ii) the failure of any Loan Party to timely comply with any undertaking set forth in this Agreement, or the breach by any Loan Documents Party in any material respect of any representation or applicable law warranty set forth in this Agreement, in each case unless the Required Lenders, in writing, waive such noncompliance or breach. “Enforcement Actions” shall mean any (1) commencement of judicial or non-judicial enforcement proceedings against any Loan Party with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement payment of any rights with respect to such Payment Blockage Notice and Obligations, (2) commencement of any other actions reasonably related to the foreclosure, enforcement or levy against or seizure or transfer of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower all or any portion of the Collateral, (3) declaration that any commitments of any Lender to make Loans, any obligation of any Canadian Lender to create or purchase any Acceptance or any obligation of any L/C Issuer to make L/C Credit Party under Extensions is terminated, (4) declaration that any portion of the unpaid principal amount of outstanding Loans (or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, any accrued interest thereon) or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies amount payable under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or is immediately due and payable and (5) demand that the rights or remedies of Agent, Borrowers Cash Collateralize the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersL/C Obligations.
Appears in 1 contract
Forbearance. (a) During the Forbearance Period (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant Subject to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means each of RTL and CEDC agree to forbear from taking any action or commencing any proceeding to enforce its rights or remedies arising out of or relating to the Put Right and the Put Notice for a period commencing on the Effective Date and terminating on the earlier of (i) April 30, 20022013 (such period, the “Forbearance Period”); (ii) provided, that the occurrence of an Additional Default (as defined below) under Forbearance Period shall automatically terminate in the Credit Agreement; (iii) event that any payment is made by Borrower voluntary or involuntary case or other proceeding with respect to CEDC or any Credit Party under of its subsidiaries is commenced seeking liquidation, reorganization or in other relief with respect to CEDC or such subsidiary or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the Senior Subordinated Note Indentureappointment of a trustee, receiver, liquidator, custodian or other similar official of CEDC or such subsidiary, as the Senior Subordinated Notescase may be, or any other Senior Subordinated Documentsubstantial part of its property, or the Trustee CEDC or any Holder (as such terms are defined in of its subsidiaries makes a general assignment for the Senior Subordinated Note Indenture) exercises any rights benefit of creditors, or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower admits in writing its inability generally to pay its debts as they become due.
(b) Each of CEDC and RTL expressly stipulate, covenant, and agree that the Required Lenders running of any statute of limitations, laches period, or any similar or other period of time (whether statutory, equitable, contractual, or otherwise) that in any way relates to any cause of action, claim, demand, argument or position, known or unknown, which could be asserted by CEDC or RTL or their affiliates related to or involving in any way the Put Right or the Put Notice, shall be suspended and shall not run during the Forbearance Period, and that after the end of the Forbearance Period, each party shall have elected such unexpired time, if any, as is available as of the date hereof under any applicable statutes of limitation or other limitations period to terminate bring any claims, demands, actions, or causes of action against the other party related to or involving in any way the Put Right or the Put Notice. Each of CEDC and RTL further agree that the passage of time during the Forbearance Period following an acceleration of shall be excluded from the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness calculation of any facts time-related claims, objections, arguments, positions or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely defenses related to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the LendersPut Right and/or Put Notice.
Appears in 1 contract
Forbearance. (a) During the Forbearance Period (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance PeriodFORBEARANCE PERIOD" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30March 31, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(aSECTION 3(A) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Fifth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12January 15, 2002 among Holdings, Borrower, Agent and the Lenders.
Appears in 1 contract
Sources: Credit Agreement (Orius Corp)
Forbearance. So long as this Agreement shall remain in effect and subject to the continued satisfaction of all material terms and conditions of the Term Sheet, each Consenting Holder hereby severally agrees to forebear (and where necessary cause the forbearance, including by giving all necessary instructions to the Old Notes Trustee and/or Administrative Agent in accordance with the Indenture and/or Existing Senior Credit Agreement) during the period commencing on the date hereof and ending on the earliest to occur of: (a) During the Forbearance Period Effective Date (as defined belowin the Term Sheet) (it being understood that such forbearance applies to any defaults caused solely by the commencement of the Chapter 11 Case filed to implement the Financial Restructuring); (b) the date on which the obligations of the Consenting Holders hereunder are terminated pursuant to SECTION 9 hereof; or (c) the date on which any action against the Debtor, any Consenting Holder or any Equity Released Party (as defined in the AgentTerm Sheet) in respect of any Equityholder Released Claim (as defined in the Term Sheet) is commenced in any court:
(1) in the case of any Old Notes comprising all or part of the Relevant Claim of such Consenting Holder, the Collateral Agent, the Facing Agent and the Lenders will not exercise from (x) exercising any of their rights or remedies it may have under the Indenture and all related documents, applicable law, or otherwise, (including, without limitation, under Section 7.21 the filing of an involuntary petition against the Company), with respect to any existing default as of the date hereof and including, without limitation, any default that has arisen or event of default that may arise from the Company's failure to pay interest on the principal amount of the Old Notes that was due and payable on May 1, 2002 under the Indenture and all related documents; and (y) commencing any action in any court against the Debtor, any Equity Released Party or any Consenting Holder in respect of any Equity Released Claim (as defined in the Term Sheet); and
(2) in the case of any Existing Senior Debt comprising all or part of the Relevant Claim of such Consenting Holder, from (a) exercising any rights and remedies it may have under the Existing Senior Credit Agreement and all related documents, applicable law and otherwise against the documents executed pursuant theretoDebtor or the Non-Filing Subsidiaries with respect to any existing Default or Event of Default (each as defined in the Existing Senior Credit Agreement) as of the date of hereof, and after the date hereof (x)(i) any Default or Event of Default arising under Section 9.03(a) of the Existing Senior Credit Agreement as a result of Holdings failure to comply with Section 8.10 or 8.11 of the Existing Senior Credit Agreement, (ii) any Default or Event of Default arising under Section 9.03(b) of the Loan Documents or applicable law Existing Senior Credit Agreement as a result of Holdings failure to deliver the certification by independent certified public accountants described in Section 7.01(c) of the Existing Senior Credit Agreement with respect to the Disclosed Defaults other than delivery annual financial statements of Holdings' and its subsidiaries for the years ending December 31, 2000 and December 31, 2001 and (iii) any Default or Event of Default arising under Section 9.04 of the Existing Senior Credit Agreement as a Payment Blockage Noticeresult of the failure of DBI (I) to pay interest on the Old Notes or (II) to file with the SEC and the Notes Trustee, as defined in pursuant to Section 4.08 of the Indenture, annual reports on Form 10K for the years ending December 31, 2000 and pursuant December 31, 2001 and quarterly reports on Form 10Q for the quarters ending March 31, 2001, June 30, 2001, September 30, 2001 and March 31, 2002 (it being understood that such forbearance under the Existing Senior Credit Agreement applies to any defaults (subject to the terms and conditions of, of the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related Fourth Amendment to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default Existing Senior Credit Agreement (as defined below)) under caused solely by the Credit Agreement; commencement of the Chapter 11 Case filed to implement the Financial Restructuring) and (iiib) commencing any payment is made by Borrower action in any court against the Debtor, any Equity Released Party or any Credit Party under or Consenting Holder in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or of any other Senior Subordinated Document, or the Trustee or any Holder Equity Released Claim; and
(as such terms are defined 3) in the Senior Subordinated Note Indenture) exercises case of any B Revolving Loan comprising all or part of the Relevant Claim of such Consenting Holder, from exercising any rights or and remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders it may have elected to terminate the Forbearance Period following an acceleration on account of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreementB Revolving Loans, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; subject to and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) the terms of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Fourth Amendment to Amended and Restated Waiver under the Existing Senior Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by date hereof (the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lenders"FOURTH AMENDMENT").
Appears in 1 contract
Sources: Lock Up, Voting and Consent Agreement (Dade Behring Holdings Inc)
Forbearance. (a) During the Forbearance Period (as defined below), solely with respect to the AgentSpecified Default (and, after the occurrence thereof, the Collateral AgentAnticipated Event of Default), neither the Facing Administrative Agent nor any Lender shall, upon the terms and conditions expressly specified herein, take any action, commence any proceedings against any Credit Party or any other Person with respect to the Lenders will not exercise enforcement of any of its or their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the Loan Documents or applicable law with respect to the Disclosed Defaults law, other than delivery of a Payment Blockage Noticeas expressly described herein. As used herein, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "“Forbearance Period" means ” shall mean the period commencing on upon the Forbearance Effective Date and terminating on continuing until the earlier earliest to occur of (the occurrence of clause (i) or (ii), a “Forbearance Termination Event”): (i) April 30, 2002; 2026 (the “Forbearance Outside Date”) and (ii) the delivery of notice from the Administrative Agent to the Borrower terminating the Forbearance Period, which notice may be delivered at any time upon or after (A) the occurrence of an Additional any Event of Default (other than the Specified Default and the Anticipated Event of Default) under the Credit Agreement or any other Credit Document and (B) the occurrence of a Forbearance Default (as defined below); provided that the Forbearance Outside Date may be extended from time to time in fifteen (15) under day increments (or longer) upon written confirmation by the Credit Agreement; Administrative Agent (iiiincluding by email). As used herein, “Forbearance Default” shall mean (A) any payment is made by the failure of the Borrower or any other Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or comply with any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate of the Forbearance Period following an acceleration Requirements set forth in Section 7 hereof, (B) the failure of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement Borrower or any agreement, instrument other Credit Party under or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect Forbearance to be true and complete as of the date when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness any other breach of any facts of such representation or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a partywarranty, or (C) the validity or enforceability (other than in accordance repudiation and/or assertion of any defense by any Credit Party with its terms) of the Credit Agreement respect to this Forbearance or any of the Loan Documents Credit Document or the rights pursuit of any claim by any Credit Party against the Agents or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersany Lender.
Appears in 1 contract
Sources: Forbearance Agreement (Hydrofarm Holdings Group, Inc.)
Forbearance. (a) During Subject to all of the Forbearance Period (as defined below)terms and conditions set forth herein, the Agent, the Collateral Agent, the Facing Administrative Agent and the Required Lenders will not exercise any of agree to forbear from exercising their rights or and remedies under the Credit Agreement and the other Credit Documents solely with respect to the Financial Covenant Defaults, until that date (the “Forbearance Termination Date”) which is the earliest to occur of: (i) the date on which any Event of Default (other than the Financial Covenant Defaults) occurs, including, without limitation, under Section 7.21 as a result of any failure to comply with any term set forth in this Forbearance, (ii) the date on which any STG Party makes any payment or prepayment of any claims that are junior or subordinated to the Obligations, other than as permitted by the Credit Agreement or with the prior written consent of the Administrative Agent, and (iii) March 31, 2017. As used herein, the term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date (as defined below) and ending on the Forbearance Termination Date. Each STG Party acknowledges that on and after the Forbearance Termination Date, the Agent and the Lenders may proceed, in accordance with the terms of the Credit Agreement and any other Credit Documents, whether with respect to the documents executed pursuant theretoFinancial Covenant Defaults or otherwise, to enforce any or all of their rights and remedies under or in respect of this Forbearance, the Credit Agreement, any of the other Credit Documents or applicable law, including, without limitation, the right: (i) under to accelerate the Obligations, (ii) to commence any legal or other action to collect any or all of the Obligations from any or all of the STG Parties and any other person liable therefor and/or any Collateral, (iii) to foreclose or otherwise realize on any or all of the Collateral and/or as appropriate, set-off or apply to the payment of any or all of the Obligations, any or all of the Collateral, (iv) to vote equity interests by proxy, (v) to exercise dominion over cash in deposit accounts, (vi) to take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Credit Agreement, the Loan other Credit Documents or applicable law with respect and (vii) to the Disclosed Defaults reject any subsequent forbearance, financial restructuring or other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is proposal made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Noteson behalf of STG Parties, or any other Senior Subordinated Documentof them, or the Trustee any creditor or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the Loan Documents or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersequity holder.
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Forbearance. (a) During Effective as of the Effective Time, the Lender Parties agree that until the expiration or termination of the Forbearance Period (as defined below): (i) they will each forbear from exercising all of their default-related rights and remedies against the Borrower, any other Credit Party (or any Subsidiary of a Credit Party), the AgentCollateral or the Existing Credit Agreement, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of their rights or remedies (including, without limitation, under Section 7.21 of the Credit Agreement and the documents executed pursuant thereto) under the Credit Agreement, the other Loan Documents or (as in effect both before and after giving effect to this Agreement) and applicable law law, in each case solely with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in Specified Defaults; and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "Forbearance Period" means the period commencing on the Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) all limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Credit Agreement; (iii) any payment is made by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable law; (iv) notification by Agent to Borrower in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documents; (v) any representation or warranty made by any of the Credit Parties under this Agreement or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed made; and (vi) the occurrence of (or the Lenders' awareness of any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the business, financial condition, assets, liabilities, prospects or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, or (C) the validity or enforceability (other than in accordance with its terms) of the Credit Agreement or any of the other Loan Documents during the continuance of any Default or Event of Default, including any limitations, restrictions or prohibitions against the reinvestment of the Net Proceeds of Dispositions or Events of Loss, the making of Restricted Payments or other payments by Borrower or any other Credit Party to any Affiliate of Borrower or any direct or indirect owner of an equity interest in the Borrower, any other Credit Party or any Affiliate of any of the foregoing, shall not, in each case solely as a result of the Specified Defaults, be in effect during the Forbearance Period. Notwithstanding the foregoing, nothing herein shall restrict, impair or otherwise affect any Lender Party’s rights and remedies against any Person other than the Credit Parties under any agreements (including the Intercreditor Agreement) containing subordination provisions in favor of any or all of the Agent and Lenders (including any rights or remedies of Agent, available to the Collateral Agent, the Facing Agent and the or Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as a result of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(aoccurrence or continuation of any Specified Default) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersor amend or modify any provision thereof.
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Forbearance. (a) During Subject to all of the Forbearance Period (as defined below)terms and conditions set forth herein, the Agent, the Collateral Agent, the Facing Agent and the Lenders will not exercise any of Purchasers agree to forbear from exercising their rights or and remedies under the Transaction Documents solely with respect to the Specified Events of Default, until that date (the “Forbearance Termination Date”) which is the earliest to occur of: (i) April 22, 2024 (the “Outside Termination Date”); (ii) the date on which any Event of Default (other than the Specified Events of Default) occurs; and (iii) the date on which any Credit Party fails to comply with any term set forth in this Agreement, including, without limitation, under Section 7.21 the failure of any Credit Party to meet any Restructuring Milestone by the Credit Agreement and the documents executed pursuant thereto) under the Credit AgreementApplicable Deadline. As used herein, the Loan Documents or applicable law with respect to the Disclosed Defaults other than delivery of a Payment Blockage Notice, as defined in and pursuant to the terms and conditions of, the Senior Subordinated Note Indenture, and the enforcement of any rights with respect to such Payment Blockage Notice and any other actions reasonably related to the enforcement of such rights. For purposes of this Agreement, "term “Forbearance Period" means ” shall mean the period commencing beginning on the Forbearance Effective Date and terminating on the earlier of (i) April 30, 2002; (ii) the occurrence of an Additional Default (as defined below) and ending on the Forbearance Termination Date. Each Credit Party acknowledges and expressly agrees that on and after the Forbearance Termination Date, the Agent and the Purchasers may, in accordance with the terms of the Transaction Documents, whether with respect to the Specified Events of Default or other Events of Default, if any, enforce any or all of their rights and remedies under or in respect of this Agreement, the Securities Purchase Agreements, any of the other Transaction Documents or applicable law, including, without limitation, the right: (i) to commence any legal or other action to collect any or all of the Obligations from any or all of the Credit AgreementParties and any other person liable therefor and/or any Collateral; (ii) to foreclose or otherwise realize on any or all of the Collateral and/or as appropriate, set-off or apply to the payment of any or all of the Obligations, any or all of the Collateral; (iii) any payment is made to vote Collateral consisting of equity interests by Borrower or any Credit Party under or in respect to the Senior Subordinated Note Indenture, the Senior Subordinated Notes, or any other Senior Subordinated Document, or the Trustee or any Holder (as such terms are defined in the Senior Subordinated Note Indenture) exercises any rights or remedies under the Senior Subordinated Documents or under applicable lawproxy; (iv) notification by Agent to Borrower exercise dominion over cash in writing that the Required Lenders have elected to terminate the Forbearance Period following an acceleration of the indebtedness evidenced by the Senior Subordinated Documentsdeposit accounts; (v) to take any representation other enforcement action or warranty made otherwise exercise any or all rights and remedies provided for by any or all of the Credit Parties under this Agreement Securities Purchase Agreements, the other Transaction Documents or any agreement, instrument or other document executed or delivered by any of the Credit Parties in connection with this Agreement is incorrect or misleading in any material respect when made or deemed madeapplicable law; and (vi) the occurrence of (or the Lenders' awareness of to reject any facts or conditions previously unknown with respect to) any adverse change which has, or is reasonably likely to have, a material adverse effect on (A) the businesssubsequent forbearance, financial condition, assets, liabilities, prospects restructuring or results of operations of Holdings and its Subsidiaries taken as a whole, (B) the ability of any Credit Party to perform its respective obligations under any Loan Document to which it is a party, other proposal made by or (C) the validity or enforceability (other than in accordance with its terms) on behalf of the Credit Agreement Parties or any of the Loan Documents their creditors or the rights or remedies of Agent, the Collateral Agent, the Facing Agent and the Lenders thereunder. The forbearance provisions set forth in this Section 3(a) shall, as of the Effective Date, supersede in their entirety the forbearance provisions set forth in Section 3(a) of the Sixth Amendment to Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the Lenders, as amended by the Forbearance Extension Agreement dated as of March 12, 2002 among Holdings, Borrower, Agent and the Lendersequity holders.
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Sources: Forbearance Agreement (Optimus Healthcare Services, Inc.)