Forbearance. Subject to all of the terms and conditions set forth herein, the Agent and the Lenders 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 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documents.”
Appears in 1 contract
Sources: Forbearance Agreement (Capital Growth Systems Inc /Fl/)
Forbearance. Subject to all of the terms and conditions set forth (a) As used herein, the Agent and the Lenders 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 term “Forbearance Period”)) which is ” shall mean the earliest period commencing on the date hereof and ending on the earlier to occur of the following: (1) the date on which any Default other than (i) the Specified Defaults occurs; or August 15, 2012 (5:00 p.m. New York time), and (ii) the Borrowers failure to comply with Item 19(a) occurrence of any one or more of the Addendum to following events: (A) the Loan occurrence of any Default or Event of Default under the Credit Agreement, other than the Designated Defaults; (2B) any failure by the failure of Borrower for any Borrower reason to comply with any term set forth term, condition, or provision contained in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3C) any failure by any other party to this Agreement, other than the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Administrative Agent, Lenders or Borrower, for any Lenderreason to comply with any term, condition, or provision contained in this Agreement; (D) any affiliate of representation made by the Borrower, any of Guarantor or the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Shareholder in this Agreement or under pursuant to any other Loan Document or any other instrument or document delivered pursuant thereto proves to be incorrect or misleading in connection with or related to any of the transactions contemplated material respect when made; (E) any Material Adverse Effect shall occur as determined in good faith by the Loan Agreement Administrative Agent or the Required Lenders; and (F) any act of fraud, intentional misrepresentation, criminal misconduct or gross negligence by the other Loan DocumentsBorrower, including this Agreement and any documents, agreements Guarantor 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 Shareholder. The occurrence of any of the Specified Defaults or any events set forth in clauses (A) through (F) above shall constitute an immediate Event of Default under the Credit Agreement and the Forbearance Period is automatically terminated and the Administrative Agent and Lenders are then permitted and entitled under Section 7 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Credit Agreement 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 other rights and remedies that may be available under the Loan Documents or applicable law.”
Appears in 1 contract
Sources: Limited Forbearance Agreement and Fourth Amendment to Credit Agreement (Champion Industries Inc)
Forbearance. Subject to all Effective as of the terms and conditions set forth hereinEffective Time, the Agent and Lender Parties agree that until the Lenders agree to expiration or termination of the Forbearance Period (as defined below): (i) they will each forbear from exercising all of their respective default-related rights and remedies under against the Loan Agreement and Borrower, any other Credit Party (or any Subsidiary of a Credit Party), the Collateral or the Existing Credit Agreement, the Credit Agreement, other Loan Documents that are based (as in effect both before and after giving effect to this Agreement) and applicable law, in each case solely on the occurrence of with respect to the Specified Defaults until that date (the “Forbearance Termination Date”Defaults; 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 and (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure of any Borrower to comply with any term set forth in this Agreementall limitations, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date restrictions or prohibitions that any Borrower joins in, assists, cooperates would otherwise be effective or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, applicable under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Credit Agreement or any of the other Loan DocumentsDocuments during the continuance of any Default or Event of Default, including this Agreement and any documentslimitations, agreements restrictions or instruments executed 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 connection with this Agreement; (4) the date Borrower, any third party exercises other Credit Party or any right or remedy it may have Affiliate of any of the foregoing, shall not, in each case solely as a result of any of the Specified Defaults or any of the events or omissions that constitute the Specified Defaults (includingDefaults, without limitation and be 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 effect during the Forbearance Termination DatePeriod. Notwithstanding the foregoing, nothing herein shall restrict, impair or otherwise affect any Lender Party’s rights and remedies against any Person other than the Agent and each Credit Parties under any agreements (including the Intercreditor Agreement) containing subordination provisions in favor of the Lenders may proceed, without any requirement for notice to the Borrowers or any other obligor, to enforce any or all of their the Agent and Lenders (including any rights and or remedies under available to the Agent or in respect of this Agreement, the Loan Agreement, any Lenders as a result of the other Loan Documents occurrence or applicable law, including, without limitation, the right to require that the Borrowers repay immediately continuation of any amounts then owing under the Loan Agreement and the other Loan DocumentsSpecified Default) or amend or modify any provision thereof.”
Appears in 1 contract
Forbearance. (a) Subject to all the satisfaction of the terms conditions precedent set forth in Section 3 below and the continued satisfaction of the conditions set forth hereinin Section 4 below, respectively, as of the Agent and date hereof, each Holder hereby agrees that during the Lenders agree to forbear from exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely period beginning on the occurrence of the Specified Defaults until that date (the “Forbearance Termination Date”; the period from the Effective Date (as hereinafter defined) through hereof and ending on the Forbearance Termination Date being (the “Forbearance Period”)) which is the earliest , it will not enforce, or otherwise take any action to occur direct enforcement of, any 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 the Addendum rights and remedies available to the Loan Agreement; (2) Holders or the failure of any Borrower to comply with any term set forth in this AgreementTrustee under the Indenture or the 2023 Notes or otherwise, including, without limitation, any action to accelerate, or join in any request for acceleration of, the undertakings 2023 Notes (“Remedial Action”) under the Indenture or the 2023 Notes, solely with respect to the 2023 Notes Interest Default (such forbearance, the “Forbearance”). As used herein, “Forbearance Termination Date” means the earlier of (i) 11:59 p.m. (New York City time) on July 15, 2020; (ii) the occurrence of any Event of Default under the Indenture other than the 2023 Notes Interest Default (including, for the avoidance of doubt, an Event of Default occurring due to the 2026 Notes Interest Default); (iii) the failure of any Note Party to comply with any term, condition, or covenant set forth in this Agreement (including, for the avoidance of doubt, Section 2 4 hereof); (3iv) the date failure of any representation or warranty made by any 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 Borrower joins in, assists, cooperates representation and warranty already is qualified or participates modified by materiality in the text thereof) as an adverse party of the date when made or adverse witness any other breach in any suit material respect of any such representation or warranty; (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 proceeding against the Agent, any Lender, or any affiliate material transaction in respect of any material indebtedness of the foregoing relating to Issuer or its subsidiaries, whether through a court-supervised insolvency proceeding or otherwise, without the express written consent of each Holder; (vi) the granting of any Obligations additional lien on any property or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any assets of the transactions contemplated by Limited Guarantor, the Loan Agreement Issuer or any of the other Loan Documents, including this Agreement and their respective subsidiaries to secure all or 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 portion of the Specified Defaults or any Credit Agreement dated as of January 30, 2019 by and among the events or omissions that constitute Issuer, the Specified Defaults Limited Guarantor, the subsidiary guarantors and the lenders party thereto and ▇▇▇▇▇ Fargo Bank, National Association, as administrative agent (including, without limitation and in any event, accelerating the payment of any Indebtedness, declaring an “event of defaultCredit Facilities”, exercising default remedies with respect to any collateral security); or (5vii) 12:01 A.M. (New York time) on February 22, 2010. On and after the occurrence of the Forbearance Termination Date, Date (as defined in 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Credit Facilities Forbearance Agreement and the other Loan Documents(as defined below)).”
Appears in 1 contract
Sources: Forbearance Agreement (CBL & Associates Limited Partnership)
Forbearance. Subject to all (a) For purposes of the terms and conditions set forth hereinthis Agreement, the Agent and term “Forbearance Period” shall mean the Lenders agree to forbear from exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely period commencing on the occurrence of the Specified Defaults until Forbearance Effective Date (as hereinafter defined) and ending on 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) July 15, 2018; (2) the 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 (i) 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 (ii6) the Borrowers failure to comply with Item 19(adate on which any person or entity (including the Term Loan Agent or any Term Loan Lender) of the Addendum to the Loan Agreement; initiates any action or proceeding (2) the failure of any Borrower to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that initiation of any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness advertisement for foreclosure under a power of sale in any suit or other proceeding against the Agentdeed of trust, any Lendermortgage, deed to secure debt, or similar instrument) to foreclose or otherwise enforce any affiliate of any of the foregoing relating to any Obligations rights or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or remedies in connection with any lien, claim of lien, deed to secure debt, mortgage, security agreement or related to any of the transactions contemplated by the Loan Agreement or any of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed in connection with this Agreement; encumbrance (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 applicable law, including, without limitation, any judgment) on any assets or properties of any Obligor or any of their respective Subsidiaries. Each of the right to require Obligors hereby acknowledges and agrees that the Borrowers repay immediately execution and delivery of this Agreement has not established any amounts then owing under course of dealing between the Loan Agreement parties hereto and that the other Loan Documentsparties hereto do not contemplate, and, in entering into this Agreement, the Obligors have not relied upon, any potential extension of the Forbearance Period.”
Appears in 1 contract
Forbearance. 5.1 Subject to all of the terms and conditions set forth hereinhereof, the Agent and the Lenders agree Lender agrees to forbear from exercising their respective rights and remedies 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 Agreement and the other Loan Documents that are based solely on the occurrence of or under applicable law or at equity with respect to the Specified Defaults Events of Default, in each case, until that the date (the “Forbearance Termination Date”; the period from the Effective Date (as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)) which that is the earliest to occur of the following: of:
(a) October 1, 2009;
(b) the date on which any Default other than The Equity Offering (ias defined in Section 6.5) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum does not result in net cash proceeds to the Loan Agreement; Borrower (2) the failure after deduction of any Borrower to comply with any term set forth in this Agreementselling expenses, 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 undertakings date on which the Obligations are paid in full in cash;
(d) the occurrence of a breach or default by the Borrower under 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 Indebtedness under the CoBank Loan Documents to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; or
(f) the occurrence of an 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 (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 (it being understood and agreed that (i) any failure by 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 rights 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 right of Lender to deliver such Forbearance Termination Notice or the 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 (c) of such Section, such Forbearance Termination Date shall be deemed to have occurred immediately prior to the applicable default and this Agreement shall terminate and the Lender shall be entitled to commence and exercise immediately all of its rights and remedies under the Loan Documents and under applicable law or at equity (including, (A) any and all Enforcement Actions and (B) the right to re-institute the per annum rate of interest of eighteen percent (18.0%) on the outstanding Obligations, calculated in the manner set forth in Section 2 hereof1 of the Secured Bridge Note retroactive to the Maturity Date of the Secured Bridge Note, that was in effect immediately prior to the Forbearance Effective Date; provided, and the parties hereto acknowledge, confirm and agree, that the amount of interest that shall have been deemed paid-in-kind in accordance with Section 6.1 shall accrue and compound at the per annum rate of interest of eighteen percent (3) 18.0%)).
5.3 The Borrower acknowledges, reaffirms and agrees that, unless and until the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, in accordance with Section 17 of the 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 affiliate 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 foregoing relating to any Obligations or any amounts owing hereunderprovisions, under warranties, terms and conditions contained in this Agreement, the Loan Secured Bridge Note, the Pledge Agreement or under any other Loan Document shall not waive, affect or in connection with diminish any right of the Lender at any time or related times thereafter to demand strict performance thereof. No waiver by the Lender of any of the transactions contemplated by the Loan Agreement its rights shall operate as a waiver of any other of its rights or any of its rights on a future occasion at any time and from time to time. The terms, conditions and events described in this Section 5.3 are currently in full force and effect without regard to or 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 assent 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 Borrower 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsPerson.”
Appears in 1 contract
Forbearance. (a) Subject to all of the terms and conditions set forth hereinof this Agreement, the Agent each of RTL and the Lenders CEDC agree to forbear from exercising their respective taking any action or commencing any proceeding to enforce its rights and or remedies under arising out of or relating to the Loan Agreement Put Right and the other Loan Documents that are based solely Put Notice for a period commencing on the occurrence of the Specified Defaults until that date (the “Forbearance Termination Date”; the period from the Effective Date and terminating on April 30, 2013 (as hereinafter defined) through the Forbearance Termination Date being such period, the “Forbearance Period”)) which is ; provided, that the earliest to occur of Forbearance Period shall automatically terminate in 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 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, the undertakings set forth in Section 2 hereof; (3) the date event that any Borrower joins in, assists, cooperates voluntary or participates as an adverse party or adverse witness in any suit involuntary case or other proceeding against with respect to CEDC or any of its subsidiaries is commenced seeking liquidation, reorganization or 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 Agentappointment of a trustee, any Lenderreceiver, liquidator, custodian or other similar official of CEDC or such subsidiary, as the case may be, or any affiliate substantial part of any of the foregoing relating to any Obligations its property, or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Agreement CEDC or any of its subsidiaries makes a general assignment for the benefit of creditors, or 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 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 such unexpired time, if any, as is available as of the date hereof under any applicable statutes of limitation or other limitations period to bring any claims, demands, actions, or causes of action against the other Loan Documents, including this Agreement party related to or involving in any way the Put Right or the Put Notice. Each of CEDC and any documents, agreements or instruments executed in connection with this Agreement; (4) RTL further agree that the date any third party exercises any right or remedy it may have as a result passage of time during the Forbearance Period shall be excluded from the calculation of any of the Specified Defaults time-related claims, objections, arguments, positions 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 defenses related 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsPut Right and/or Put Notice.”
Appears in 1 contract
Forbearance. Subject So long as this Agreement shall remain in effect and subject to the continued satisfaction of all of the material terms and conditions set forth hereinof 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 and in accordance with the Lenders agree to forbear from exercising their respective rights and remedies under Indenture and/or Existing Senior Credit Agreement) during the Loan Agreement and the other Loan Documents that are based solely period commencing on the occurrence of date hereof and ending on the Specified Defaults until that date earliest to occur of: (the “Forbearance Termination Date”; the period from a) the Effective Date (as hereinafter defineddefined in the Term Sheet) through (it being understood that such forbearance applies to any defaults caused solely by the Forbearance Termination Date being the “Forbearance Period”)) which is the earliest to occur commencement of the following: Chapter 11 Case filed to implement the Financial Restructuring); (1b) 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 Default other than action against the Debtor, any Consenting Holder or any Equity Released Party (ias defined in the Term Sheet) in respect of any Equityholder Released Claim (as defined in the Specified Defaults occurs; Term Sheet) is commenced in any court:
(1) in the case of any Old Notes comprising all or (ii) the Borrowers failure to comply with Item 19(a) part of the Addendum to Relevant Claim of such Consenting Holder, from (x) exercising any rights or remedies it may have under the Loan Agreement; Indenture and all related documents, applicable law, or otherwise, (2) the failure of any Borrower to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as filing of an adverse party or adverse witness in any suit or other proceeding involuntary petition against the AgentCompany), any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 existing default as 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 date hereof and remedies under or in respect of this Agreement, the Loan Agreement, any of the other Loan Documents or applicable law, including, without limitation, any default that has arisen or event of default that may arise from the right Company's failure to require pay interest on the principal amount of the Old Notes that the Borrowers repay immediately any amounts then owing was due and payable on May 1, 2002 under the Loan 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 other Debtor 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 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 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 result of the failure of DBI (I) to pay interest on the Old Notes or (II) to file with the SEC and the Notes Trustee, pursuant to Section 4.08 of the Indenture, annual reports on Form 10K for the years ending December 31, 2000 and 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 the Fourth Amendment to the Existing Senior Credit Agreement (as defined below)) caused solely by the commencement of the Chapter 11 Case filed to implement the Financial Restructuring) and (b) commencing any action in any court against the Debtor, any Equity Released Party or any Consenting Holder in respect of any Equity Released Claim; and
(3) in the case of any B Revolving Loan Documentscomprising all or part of the Relevant Claim of such Consenting Holder, from exercising any rights and remedies it may have on account of the B Revolving Loans, subject to and in accordance with the terms of Fourth Amendment to and Waiver under the Existing Senior Credit Agreement dated as of the date hereof (the "FOURTH AMENDMENT").”
Appears in 1 contract
Sources: Lock Up, Voting and Consent Agreement (Dade Behring Holdings Inc)
Forbearance. Subject to all From the execution and delivery of this Agreement until the earlier of the terms and conditions set forth hereinEffective Time or the termination of this Agreement pursuant to Section 12 hereof (such period, the Agent and the Lenders 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”), as long as no Forbearance Default occurs, the 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 (as such term is defined in the Notes and the Certificate of Designations, as applicable), including converting the Notes into shares of Common Stock pursuant to Section (6)(b) which is the earliest to occur thereof or otherwise. For purpose of this Agreement, a “Forbearance Default” means any of the following: (1) the date on which any Default other than (i) the Specified Defaults occursCompany or any of its Subsidiaries making a general assignment for the benefit of creditors or consenting to the appointment of a receiver, liquidator, 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; or (ii) the Borrowers failure to comply with Item 19(a) of 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding commencement against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Agreement Company or any of its Subsidiaries of any action or proceeding of the other Loan Documentsnature referred to in clause (i) above or seeking the issuance of a warrant of attachment, including this Agreement and execution, distraint or similar process against all or any documentssubstantial part of its property which results in the entry of an order for relief which remains undismissed, agreements undischarged or instruments executed in connection with this Agreementunbonded for a period of sixty (60) days; (4iii) the date any third party exercises any right or remedy it may have as a result of any initiation of the Specified Defaults dissolution or other winding up of the Company or any of the events its Subsidiaries, whether voluntary or omissions that constitute the Specified Defaults (including, without limitation involuntary and in any event, accelerating the payment of any Indebtedness, declaring an “event of default”, exercising default remedies with respect to any collateral security)whether or not involving insolvency or bankruptcy proceedings; or (5iv) 12:01 A.M. (New York time) on February 22, 2010. On and after the Forbearance Termination Date, initiation of any assignment for the Agent and each benefit of creditors or any marshalling of the Lenders may proceed, without any requirement for notice to material assets or material liabilities of the Borrowers Company 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documentsits Subsidiaries.”
Appears in 1 contract
Sources: Preferred Stock, Warrant and Note Termination Agreement (Paradigm Holdings, Inc)
Forbearance. Subject to all The Lenders hereby agree from and after the date of execution of this Agreement until the conversion into equity of the terms and conditions set forth herein, the Agent and the Lenders agree Second Conversion Amount to forbear from exercising their respective in the exercise of any rights and remedies under or remedies, whether granted in the Loan Agreement and Documents or under law, with respect to the other Loan Documents that are based solely on the occurrence Company or any of the Specified Defaults until that date its assets (the “Forbearance Termination Date”; the period from the Effective Date (as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)) which is , other than the earliest to occur exercise of the following: (1) Permitted Remedies. As used herein, the date on which any Default other than “Permitted Remedies” shall be limited solely to (i) the Specified Defaults occurs; or exercise of the Lenders rights and remedies under applicable law to conduct a public foreclosure sale as to all collateral securing the Optex-Texas Guaranty pursuant to the terms of Section 4.5 below and (ii) to enforce the Borrowers failure terms of this Agreement and (iii) to comply with Item 19(a) obtain the benefits of the Addendum continuing indemnification obligations of the Company to the Loan Agreement; (2) the failure of any Borrower to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth Lenders as described in Section 2 hereof; (3) 2.2. The Forbearance Period shall terminate automatically upon the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate occurrence of any of the foregoing relating following events: (i) the commencement by the Company or Optex-Texas of a voluntary proceeding seeking relief with respect to itself or its debts under any Obligations bankruptcy, insolvency or similar law, or seeking appointment of a trustee, receiver, liquidator or other similar official for it or any amounts owing hereunder, under the Loan Agreement substantial part of its assets; or under any other Loan Document or in connection with or related its consent to any of the transactions contemplated by foregoing in any involuntary proceeding against it; or makes an assignment for the Loan Agreement benefit of, or the offering to or entering into by. the Company or Optex-Texas of any reorganization with its creditors, (ii) commencement of an involuntary proceeding against the Company or Optex-Texas of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed kind described in connection with this Agreementclause (i) above; (4iii) the date Company or Optex-Texas makes any third party exercises any right or remedy it may have as a result of any payment on account of the Specified Defaults obligations owed to Looney on TWL Group, L.P., (iv) Looney or TWL Group, L.P. take any of judicial actions to impede the events or omissions that constitute foreclosure against the Specified Defaults (includingOptex Texas Collateral described in Section 4.3 below, 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 (5v) 12:01 A.M. (New York time) on February 22, 2010. On and 180 days 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documentsdate hereof.”
Appears in 1 contract
Sources: Memorandum of Understanding (Irvine Sensors Corp/De/)
Forbearance. Subject (i) In reliance upon the undertakings, representations, warranties, and covenants of each Loan Party contained in this Agreement, and subject to all of the terms and conditions set forth hereinof this Agreement and any documents or instruments executed in connection herewith, the Agent and the Lenders agree to forbear from further exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely on the occurrence or applicable law in respect of or arising out of the Specified Forbearance Defaults until that date (the “Forbearance Termination Date”; for the period from commencing on the Effective Date (as hereinafter defined) through and ending on the Forbearance Termination Date being (as defined below) (the “Forbearance Period”).
(ii) which As used herein, the “Forbearance Termination Date” means the date that is the earliest to occur of the followingof: (1a) January 29, 2024; (b) the date on which any Default other than Loan Party commences, or threatens in writing to commence, any litigation against the Agent or any Lender; (ic) the Specified Defaults occursdate on which any Loan Party takes any action inconsistent with the Agent’s or any Lender’s interests in the Collateral; or (iid) the Borrowers failure to comply with Item 19(acommencement of any Insolvency Proceeding by or against any Loan Party; (e) of the Addendum any amendment to the Loan Agreement; Parties’ Operating Documents, or the Company’s entry into any stockholders agreement or other Operating Document, which in any way amends or alters (2other than such amendments or agreements as are required in order to give effect to the provisions of this Agreement and which shall be reasonably acceptable to the Agent) (A) the failure composition of the Loan Parties’ Governing Bodies, including providing any stockholder or other Person with any right to designate a director, (B) the relative voting rights of members of such Governing Bodies or stockholders, or (C) the terms of the Loan Parties’ governance, or (f) the occurrence or existence of any Borrower to comply with Default or Event of Default hereunder or under any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any LenderLoan Document, or any affiliate 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 Loan Parties to satisfy any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any covenants herein will constitute an immediate Event of the transactions contemplated by the Loan Agreement or any Default for purposes 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 determining the Forbearance Termination Date. An “Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any Debtor Relief Law, the Agent and each of the Lenders may proceed, without any requirement for notice to the Borrowers or any other obligor, agreement of such Person with respect to enforce relief available under 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsDebtor Relief Law.”
Appears in 1 contract
Forbearance. Subject to all of the terms and conditions set forth herein, the Administrative Agent, the Collateral Agent and the Lenders party hereto agree to forbear from exercising their respective rights and remedies under the Loan Credit Agreement and the other Loan Credit Documents that are based solely on with respect to the occurrence Designated Events of Default until October 30, 2009 (such date, subject to the Specified Defaults until that date (following proviso, the “Forbearance Termination Date”); the period from the Effective Date (as hereinafter defined) through provided, that the Forbearance Termination Date being shall be automatically accelerated to the “Forbearance Period”)) which is date of the earliest to occur of any of the followingfollowing events: (1a) the occurrence after the date on which hereof of any Default or Event of Default other than the Designated Events of Default, (i) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2b) the failure of the Borrower or any Borrower of the other Credit Parties to comply with any term term, covenant or provision set forth in this Agreement, including, without limitation, the undertakings those set forth in Section 2 1.02 and Section IV hereof; , (3c) 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 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 Borrower 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, any Lenderthe Collateral Agent, the Lenders or any affiliate of the Administrative Agent, the Collateral Agent or any of the foregoing Lender relating to any the Obligations or in respect of any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by Credit Agreement, the Loan other Credit Documents, this 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, 2010therewith. On and after the Forbearance Termination Date, the Administrative Agent, the Collateral Agent and each of the Lenders party hereto may proceed, without any requirement for notice to the Borrowers or any other obligor, proceed to enforce any or and/or all of their rights and remedies under or in respect of this the Credit Agreement, the Loan Agreement, any of the other Loan Credit Documents or and applicable law, including, without limitation, the right to require that the Borrowers Borrower repay immediately any amounts then due and owing under to the Loan Agreement Administrative Agent, the Collateral Agent and the other Loan DocumentsLenders without the giving of notice or the expiration of any applicable grace period.”
Appears in 1 contract
Sources: Forbearance Agreement (Fairpoint Communications Inc)
Forbearance. Subject to all of the terms and conditions set forth herein, the Agent and the Lenders 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 During 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) none of 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Collateral Agent, any Lender, Daiwa, or any affiliate 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 foregoing relating to 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 Lender, Daiwa, and any Obligations Participant may exercise any rights or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related remedies that it may have pursuant to any of the transactions contemplated by the Loan 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 Program Documents as a result of any of (i) the Specified Existing Defaults or (ii) any Event of Default or Servicer Termination Event as defined in and pursuant to the Credit Agreement or the Servicing Agreement, respectively. Notwithstanding the foregoing, in the event the Borrower becomes subject to, and is a debtor, directly or by consolidation with West or any other affiliate of West in any bankruptcy proceeding, each of the Collateral Agent, the Lender, Daiwa, and any Participant may exercise any rights or remedies that it may have pursuant to the Credit Agreement, the Servicing Agreement or any of the events Program Documents provided that none of them shall take any action or omissions consent to any action that constitute results or may result in (i) the Specified Defaults liquidation or sale of any of the Designated Accounts other than as provided in this Supplement, (includingii) removal of the Servicer other than as provided in this Supplement, without limitation and in (iii) any eventreduction, accelerating limit or delay of the payment of any Indebtednessfees or compensation or amounts payable to the Servicer pursuant to the Servicing Agreement, declaring an “event of default”, exercising default remedies with respect to any collateral security); or (5iv) 12:01 A.M. (New York time) on February 22the impairment, 2010. On and after limitation or restriction of any rights, powers or remedies that the Forbearance Termination Date, the Agent and each of the Lenders Servicer may proceed, without any requirement for notice have pursuant to the Borrowers or any other obligor, to enforce any or all of their rights and remedies under or in respect of this Servicing Agreement, the Loan Agreement, any of the other Loan Documents or applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documents.”
Appears in 1 contract
Sources: Supplement to Servicing Agreement (Encore Capital Group Inc)
Forbearance. Subject to all of (a) During the terms and conditions set forth hereinForbearance Period (as defined below), the Agent, the Collateral Agent, the Facing Agent and the Lenders agree to forbear from exercising will not exercise any of their respective rights and or 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 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 Section 7.21 of the undertakings set forth 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 Section 2 hereofand 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; (3ii) the date that occurrence of an Additional Default (as defined below) under the Credit Agreement; (iii) any payment is made by Borrower joins inor any Credit Party under or in respect to the Senior Subordinated Note Indenture, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any LenderSenior Subordinated Notes, or any affiliate 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 foregoing relating to any Obligations Credit Parties under this Agreement or any amounts owing hereunderagreement, under instrument or other document executed or delivered by any of the Loan Agreement or under any other Loan Document or Credit Parties in connection with this Agreement is incorrect or related 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 transactions contemplated by the Loan 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 applicable law, including, without limitationthe rights or remedies of Agent, the right 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 require that the Borrowers repay immediately any amounts then owing under the Loan Amended and Restated Credit Agreement and Forbearance Agreement dated as of February 26, 2002 among Holdings, Borrower, Agent and the other Loan DocumentsLenders, 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. Subject to all of (a) In consideration for, and subject to, compliance by the Obligors with the terms and conditions set forth hereinof this Agreement, the Agent and the Lenders agree Lender hereby agrees to forbear from exercising their respective its rights and remedies under the Loan Agreement Documents (except as set forth in Paragraph 7 below) and the other Loan Documents that are based solely on applicable law as a result of the occurrence of the Specified Defaults Existing Events of Default until that date (the “Forbearance occurrence of a Termination Date”; the period from the Effective Date Event (as hereinafter definedsuch term is defined below). This forbearance is given as a one time accommodation by Lender to the Obligors and nothing contained herein shall require Lender to waive any Default or Event of Default or forbear from exercising any of its rights or remedies with respect to the occurrence of any other Default or Event of Default existing on the effective date of this Agreement or occurring after the effective date of this Agreement.
(b) through the Forbearance For purposes of this Agreement, a "Termination Date being the “Forbearance Period”)) which is Event" shall mean ------------------ the earliest to occur of (i) four weeks from the Accommodation Overadvance Funding Date, (ii) April 24, 2009, and (iii) any one or more of the following: :
(1A) the date on which failure of the Obligors to comply with the terms, covenants, agreements and conditions of this Agreement;
(B) any representation or warranty made herein shall be incorrect in any material respect;
(C) the occurrence of any Event of Default under the Credit Agreement, other than (i) the Specified Defaults occurs; Existing Events of Default or (ii) the Borrowers failure breach by Obligors of their obligation pursuant to comply with Item 19(aSection 6.1(a) of the Addendum 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 Agreement; (2) Documents, at law and in equity, upon the failure occurrence of any Borrower to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates a Termination Event. This Agreement shall not constitute a waiver or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate modification of any of Lender's rights and remedies, the foregoing relating to Existing Events of Default, any Obligations other Default or any amounts owing hereunder, Event of Default under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Agreement Documents, or any of the other Loan Documentsterms, including this Agreement and any documentsconditions, agreements warranties, representations or instruments executed covenants contained 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documents.”
Appears in 1 contract
Sources: Forbearance Agreement (Ronson Corp)
Forbearance. Subject to all the satisfaction of the terms and conditions precedent set forth hereinin Section 3 hereof, the Agent Administrative Agents and the Lenders hereby agree to forbear from exercising their respective rights and remedies under taking any of the Loan Agreement and the other Loan Documents that are based solely on “Enforcement Actions” defined below as a result of the occurrence and continuation of the Specified Defaults until that date (the “Forbearance Termination Date”; solely during the period from beginning on the Effective Date and ending immediately upon the earliest of (such period being referred to herein as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)): (a) which is December 31, 2014, (b) the earliest to occur occurrence of any Default under Section 8.01(f) or (g) of the followingCredit Agreement and (c) the termination of the Forbearance Period by the Domestic Administrative Agent, acting at the direction of the Required Lenders, due to: (1i) the date on which occurrence of any Default other than (i) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure of any Borrower Loan Party to timely comply with any term undertaking set forth in this Agreement, including, without limitation, or the undertakings breach by any Loan Party in any material respect of any representation or warranty set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Agreement or any of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed in connection with this Agreement; , in each case unless the Required Lenders, in writing, waive such noncompliance or breach. “Enforcement Actions” shall mean any (41) the date commencement of judicial or non-judicial enforcement proceedings against 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 Loan Party with respect to the payment of any IndebtednessObligations, declaring an “event (2) commencement of default”any foreclosure, exercising default remedies with respect enforcement or levy against or seizure or transfer of all or any portion of the Collateral, (3) declaration that any commitments of any Lender to make Loans, any collateral security); obligation of any Canadian Lender to create or purchase any Acceptance or any obligation of any L/C Issuer to make L/C Credit Extensions is terminated, (4) declaration that any portion of the unpaid principal amount of outstanding Loans (or any accrued interest thereon) or any other amount payable under the Loan Documents is immediately due and payable and (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 applicable law, including, without limitation, the right to require demand that the Borrowers repay immediately any amounts then owing under Cash Collateralize the Loan Agreement and the other Loan DocumentsL/C Obligations.”
Appears in 1 contract
Forbearance. Subject to all of the terms and conditions set forth (a) As used herein, the Agent and the Lenders 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 term “Forbearance Period”)) which is ” shall mean the earliest period commencing on the date hereof and ending on the earlier to occur of the following: (1) the date on which any Default other than (i) the Specified Defaults occurs; or October 15, 2012 (5:00 p.m. New York time), and (ii) the Borrowers failure to comply with Item 19(a) occurrence of any one or more of the Addendum to following events: (A) the Loan occurrence of any Default or Event of Default under the Credit Agreement, other than the Designated Defaults; (2B) any failure by the failure of Borrower for any Borrower reason to comply with any term set forth term, condition, or provision contained in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3C) any failure by any other party to this Agreement, other than the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Administrative Agent, Lenders or Borrower, for any Lenderreason to comply with any term, condition, or provision contained in this Agreement; (D) any affiliate of representation made by the Borrower, any of Guarantor or the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Shareholder in this Agreement or under pursuant to any other Loan Document or any other instrument or document delivered pursuant thereto proves to be incorrect or misleading in connection with or related to any of the transactions contemplated material respect when made; (E) any Material Adverse Effect shall occur as determined in good faith by the Loan Agreement Administrative Agent or the Required Lenders; and (F) any act of fraud, intentional misrepresentation, criminal misconduct or gross negligence by the other Loan DocumentsBorrower, including this Agreement and any documents, agreements Guarantor 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 Shareholder. The occurrence of any of the Specified Defaults or any events set forth in clauses (A) through (F) above shall constitute an immediate Event of Default under the Credit Agreement and the Forbearance Period is automatically terminated and the Administrative Agent and Lenders are then permitted and entitled under Section 7 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Credit Agreement 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 other rights and remedies that may be available under the Loan Documents or applicable law.”
Appears in 1 contract
Sources: Limited Forbearance Agreement and Amendment to Credit Agreement (Champion Industries Inc)
Forbearance. Subject to all of the terms and conditions set forth herein, the (a) The Administrative Agent and the Required Lenders agree hereby agree, during the Forbearance Period, to forbear from exercising their respective rights (i) declaring the Obligations, all interest thereon and remedies all other amounts payable under the Loan Agreement Documents to be due and the other Loan Documents that are based solely on payable as a result of the occurrence of the Specified Defaults until Subject Events of Default and (ii) (A) terminating any obligation of the Lenders to make Loans and any obligation of the Issuer to issue Letters of Credit, or (B) demanding that date the Borrower pay to the Administrative Agent an amount equal to the Letter of Credit Exposure outstanding on the Forbearance Effective Date, 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 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 Event” under this Agreement:
(i) the Specified Defaults occurs; Borrower shall fail to make any payment of principal due under the Credit Agreement or this Agreement (including any payment required to reimburse the Issuer or any Lender for any disbursement made by the Issuer pursuant to any Letter of Credit);
(A) the Borrower shall fail to make any payment of interest due under the Credit Agreement or (iiB) the Borrowers failure Borrower shall fail to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure make payment of any Borrower to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; amount (3other than principal or interest) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing payable hereunder, under the Loan Credit 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 representation or warranty made or deemed made by the Borrower herein or which is contained in any certificate, document or financial or other statement furnished by the Borrower at any time under or in connection with this Agreement shall prove to have been inaccurate in any material respect on or related to any as of the transactions contemplated by date made or deemed made;
(iv) the Loan Agreement Borrower shall default in the observance or performance of any of the other Loan Documents, including this Agreement and any documents, agreements covenant or instruments executed agreement contained in connection with this Agreement; , and such default shall continue unremedied for a period of three (43) 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 more Business Days after the Forbearance Termination Date, the Agent and each of the Lenders may proceed, without any requirement for notice to the Borrowers 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; or
(vi) the occurrence of an Event of Default specified in Article 8 of the Credit Agreement, other obligorthan the Subject Events of Default.
(c) Upon the occurrence of any Forbearance Termination Event, the forbearance agreements contained in Section 3(a) hereof shall automatically terminate and the Administrative Agent, at the direction of the Required Lenders in their sole discretion, may, without presentment, demand, protest or notice to enforce the Borrower, all of which are hereby waived,
(i) declare all Obligations due and payable and the same 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 their rights the Extensions of Credit, and remedies under (iv) take whatever other action it shall deem appropriate as permitted by applicable law or by any agreement, document or instrument executed and delivered pursuant to or in respect of this Agreement, connection with the Loan Agreement, any of the other Loan Documents or applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsObligations.”
Appears in 1 contract
Forbearance. Subject A. Bank agrees to all 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) 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 (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 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 relief for debtors, (c) Borrower's seeking, consenting to, or acquiescing in the appointment of any trustee, receiver, conservator or liquidation, (d) Borrower's becoming the subject of any order, judgment or 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, or (e) termination of the Merger Agreement prior to the consummation of the Merger according to the terms and conditions set forth hereinof Merger Agreement ("Merger Closing").
B. Upon termination of the Forbearance Period, Bank may, at its option, exercise its rights under the Agent Loan Documents, and under applicable law; provided, however, that Bank shall notify Acquiror, Acquiror's counsel, Borrower, and Borrower's counsel (as listed on Exhibit "A") in writing ten (10) days prior to (a) its acceleration of any amounts due to Bank, (b) Bank's taking any other action to collect any cash amounts or realize the Lenders agree benefit of any security interest in Borrower's assets or (c) the exercise by Bank of any other rights under the Loan Documents. Bank understands that it is a condition to Acquiror's obligation to close the Merger that Bank not undertake any of the 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 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 right 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, 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 relief for debtors, (c) seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidation, or (d) be the subject of any order, judgment or 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 exercising their respective any automatic stay imposed by Section 362 of the 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 Agreement Documents.
E. By signing below, Borrower acknowledges that the Indebtedness currently is in default 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 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 such default 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 subject to the Borrowers or any other obligor, to enforce any or all of their rights and remedies under or in respect terms of this AgreementLoan Modification, the Loan Agreement, any of the other Loan Documents or applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Consent and Forbearance Agreement and the other April 1998 Loan Modification Agreement, Bank is entitled to exercise its remedies as provided in the Loan Documents and as provided under applicable law. Nothing in this agreement 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) in no way shall be deemed an agreement by Bank to waive Borrower's compliance with all other terms of the Existing Loan Documents, as modified by this Loan Modification, Consent and Forbearance Agreement 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 any date.”
Appears in 1 contract
Forbearance. Subject During the Forbearance Period (as defined below), Lender will not make demand for payment under the Restated Revolving Note and/or Restated Term Note, or exercise any of its rights or remedies under the Credit Documents with respect to all the Designated Defaults (as defined below). For purposes of this Agreement, "Forbearance Period" means the period commencing on the date hereof and ending on the earlier of: (a) May 31, 2004; (b) the occurrence of a Default hereunder; (c) the termination of the terms forbearance period pursuant to that certain Forbearance Agreement by and conditions among Continental Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the "Global Forbearance Agreement"); and/or (d) either the Trustee under, or holders of 25% or more of the Series A and Series B Notes issued by Continental Global and administered by Norwest Bank Minnesota, Trustee under, that certain Indenture, dated as of April 1, 1997 (the "Indenture"), have declared the Series A and Series B Notes and/or any Liquidated Damages (as defined in the Indenture) to be due and payable; provided, however, that Lender's present willingness to so forbear and to forgo the exercise of any of Lender's rights, remedies, powers and/or privileges under the Credit Documents shall only be construed as a limited, one-time forbearance. The Borrowers acknowledge and agree that, notwithstanding the foregoing: (i) except as set forth herein, Lender reserves the Agent right to enforce each and every term of the Lenders agree Credit Documents; (ii) Lender is under no duty or obligation of any kind or any nature to forbear from exercising their respective grant the Borrowers any additional period of forbearance beyond the Forbearance Period; (iii) Lender's actions in entering into this Agreement shall not be construed as a waiver or relinquishment of, or estoppel to assert, any of Lender's rights or remedies under any of the Credit Documents, applicable law or in equity; and (iv) Lender's actions in entering into this Agreement are without prejudice to Lender's right to pursue any and all remedies under the Loan Agreement and Credit Documents, pursuant to applicable law, or in equity available to it in the other Loan Documents that are based solely on sole discretion upon the occurrence of the Specified Defaults until that date termination (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; whether upon expiration thereof, upon acceleration, or (ii) the Borrowers failure to comply with Item 19(aotherwise) of 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsPeriod.”
Appears in 1 contract
Forbearance. Subject During the Forbearance Period (as defined below), Lender will not make demand for payment under the Restated Revolving Note and/or Restated Term Note, or exercise any of its rights or remedies under the Credit Documents with respect to all the Designated Defaults (as defined below). For purposes of this Agreement, "Forbearance Period" means the period commencing on the date hereof and ending on the earlier of: (a) July 13, 2004; (b) the occurrence of a Default hereunder; (c) the termination of the terms forbearance period pursuant to that certain Forbearance Agreement by and conditions among Continental Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the "Global Forbearance Agreement"); and/or (d) either the Trustee under, or holders of 25% or more of the Series A and Series B Notes issued by Continental Global and administered by Norwest Bank Minnesota, Trustee under, that certain Indenture, dated as of April 1, 1997 (the "Indenture"), have declared the Series A and Series B Notes and/or any Liquidated Damages (as defined in the Indenture) to be due and payable; provided, however, that Lender's present willingness to so forbear and to forgo the exercise of any of Lender's rights, remedies, powers and/or privileges under the Credit Documents shall only be construed as a limited, one-time forbearance. The Borrowers acknowledge and agree that, notwithstanding the foregoing: (i) except as set forth herein, Lender reserves the Agent right to enforce each and every term of the Lenders agree Credit Documents; (ii) Lender is under no duty or obligation of any kind or any nature to forbear from exercising their respective grant the Borrowers any additional period of forbearance beyond the Forbearance Period; (iii) Lender's actions in entering into this Agreement shall not be construed as a waiver or relinquishment of, or estoppel to assert, any of Lender's rights or remedies under any of the Credit Documents, applicable law or in equity; and (iv) Lender's actions in entering into this Agreement are without prejudice to Lender's right to pursue any and all remedies under the Loan Agreement and Credit Documents, pursuant to applicable law, or in equity available to it in the other Loan Documents that are based solely on sole discretion upon the occurrence of the Specified Defaults until that date termination (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; whether upon expiration thereof, upon acceleration, or (ii) the Borrowers failure to comply with Item 19(aotherwise) of 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, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsPeriod.”
Appears in 1 contract
Forbearance. Subject to all At the request of the terms Borrowers, OLFJV and conditions set forth hereinMIF:
(a) During the Forbearance Period (as such term is defined below), the Agent each of JDN and the Lenders Guaranty Corp agree to forbear forebear from exercising any of their respective rights and remedies under or 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 Agreement and the other Loan Documents that are based solely on the occurrence 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 Specified Defaults until that date 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 (the “Forbearance Termination Date”; the period from the Effective Date (as hereinafter definedwhether arising directly or indirectly, by operation of law, contract or otherwise) through to assert, during the Forbearance Termination Date being Period, any claim against the “Forbearance Period”)) which is the earliest to occur Borrowers, OLFJV or MIF or any of the following: (1) the date Borrowers’ or OLFJV’s assets on which account of any Default other than (i) the Specified Defaults occurs; payments made by such Guarantor in connection with or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum pursuant to the Development Loan Agreement; (2) Guaranties, the failure of any Borrower to comply with any term set forth in this Mortgage Loan Guaranties, or the Indemnity Agreement, including, without limitation, any and all rights of subrogation, reimbursement, exoneration, contribution, or indemnity. “Forbearance Period” shall mean the undertakings set forth in Section 2 hereof; (3) period of time from the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against of this Agreement until the Agent, any Lender, or any affiliate earliest to occur of any of the foregoing relating to any Obligations or any amounts owing hereunderfollowing: (i) December 31, under 2010; (ii) the Loan Agreement or under any other Loan Document or appointment by the board of directors of MIF of a trustee in connection with or related to any of the transactions contemplated by the Loan 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 transfer of any of the Specified Defaults or any assets of MIF to a liquidating trust, effective ninety (90) days after the date of such transfer; (iii) the date of the events or omissions that constitute the Specified Defaults (including, without limitation and in any event, accelerating the payment filing of any Indebtednesspetition in bankruptcy, declaring an “event of default”whether voluntary or involuntary, exercising default remedies with respect to by or against any collateral security)Borrower or MIF; or (5iv) 12:01 A.M. (New York time) on February 22, 2010. On and after the Forbearance Termination Date, the Agent and each date of the Lenders may proceed, without assignment of any requirement assets of MIF for notice to the Borrowers or any other obligor, to enforce any or all benefit of their rights and remedies under or in respect of this Agreement, the Loan Agreement, any of the other Loan Documents or applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documentscreditors.”
Appears in 1 contract
Forbearance. Subject (i) In reliance upon the undertakings, representations, warranties, and covenants of each Loan Party and each Significant Stakeholder contained in this Agreement, and subject to all of the terms and conditions set forth hereinof this Agreement and any documents or instruments executed in connection herewith, the Agent and the Lenders agree to forbear from further exercising their respective rights and remedies under the Loan Agreement and the other Loan Documents that are based solely on the occurrence or applicable law in respect of or arising out of the Specified Forbearance Defaults until that date (the “Forbearance Termination Date”; for the period from commencing on the Effective Date (as hereinafter defined) through and ending on the Forbearance Termination Date being (as defined below) (the “Forbearance Period”).
(ii) which As used herein, the “Forbearance Termination Date” means the date that is the earliest to occur of the followingof: (1a) April 14, 2024; (b) the date on which any Default other than Loan Party commences, or threatens in writing to commence, any litigation against the Agent or any Lender; (ic) the Specified Defaults occursdate on which any Loan Party takes any action inconsistent with the Agent’s or any Lender’s interests in the Collateral; or (iid) the Borrowers failure to comply with Item 19(acommencement of any Insolvency Proceeding by or against any Loan Party; (e) of the Addendum any amendment to the Loan Agreement; Parties’ Operating Documents, or the Company’s entry into any stockholders agreement or other Operating Document, which in any way amends or alters (2other than such amendments or agreements as are required in order to give effect to the provisions of this Agreement and which shall be reasonably acceptable to the Agent) (A) the failure composition of the Loan Parties’ Governing Bodies, including providing any Borrower to comply stockholder or other Person with any term set forth right to designate a director (except as may approved in this Agreementwriting by Agent in its sole discretion), including(B) the relative voting rights of members of such Governing Bodies or stockholders, without limitationor (C) the terms of the Loan Parties’ governance, (f) P▇▇▇ ▇▇▇▇▇▇▇▇ LLP ceases, for any reason, to act as corporate counsel to the undertakings set forth in Section 2 hereof; Loan Parties, (g) on the date that is three (3) days after the Effective Date, if by that date that the Loan Parties have not retained an interim or permanent resource to support capital markets activity reasonably acceptable to Agent in its sole discretion, or (h) the occurrence or existence of any Borrower joins in, assists, cooperates Default or participates as an adverse party Event of Default hereunder or adverse witness in under any suit or other proceeding against the Agent, any LenderLoan Document, or any affiliate 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 Loan Parties to satisfy any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any covenants herein will constitute an immediate Event of the transactions contemplated by the Loan Agreement or any Default for purposes 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 determining the Forbearance Termination Date. An “Insolvency Proceeding” means any case or proceeding commenced by or against a Person under any Debtor Relief Law, the Agent and each of the Lenders may proceed, without any requirement for notice to the Borrowers or any other obligor, agreement of such Person with respect to enforce relief available under 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan DocumentsDebtor Relief Law.”
Appears in 1 contract
Forbearance. Subject to all of the terms and conditions set forth herein, the Agent and the Lenders Purchasers agree to forbear from exercising their respective rights and remedies under the Loan Agreement and the other Loan Transaction Documents that are based solely on the occurrence of with respect to the Specified Defaults Events of Default, 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 followingof: (1i) 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 (iiii) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure of date on which any Borrower Credit Party fails to comply with any term set forth in this Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate failure of any of the foregoing relating Credit Party to meet any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated Restructuring Milestone by the Loan Agreement or any of Applicable Deadline. As used herein, the other Loan Documents, including this Agreement term “Forbearance Period” shall mean the period beginning on the Forbearance Effective Date (as defined below) and any documents, agreements or instruments executed in connection with this Agreement; (4) ending on 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 Forbearance Termination Date. Each Credit Party acknowledges and expressly agrees 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 the Purchasers may, in accordance with the terms of the Lenders may proceedTransaction Documents, without any requirement for notice whether with respect to the Borrowers Specified Events of Default or any other obligorEvents of Default, to if any, enforce any or all of their rights and remedies under or in respect of this Agreement, the Loan AgreementSecurities Purchase Agreements, any of the other Loan Transaction Documents or applicable law, including, without limitation, the right right: (i) to require that commence any legal or other action to collect any or all of the Borrowers repay immediately Obligations from any amounts then owing under or all of the Loan Agreement Credit Parties 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) to vote Collateral consisting of equity interests by proxy; (iv) to exercise dominion over cash in deposit accounts; (v) to take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Securities Purchase Agreements, the other Loan DocumentsTransaction Documents or applicable law; and (vi) to reject any subsequent forbearance, financial restructuring or other proposal made by or on behalf of the Credit Parties or any of their creditors or equity holders.”
Appears in 1 contract
Sources: Forbearance Agreement (Optimus Healthcare Services, Inc.)
Forbearance. Subject The Company has requested the Noteholders agree to all 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) the provisions of Section 7.11(a), (b), (c) and (e) of the Credit Agreement and/or the provisions of Section 8.1 or Section 8.4 of the Credit Agreement, and (b) the 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 period commencing on the date hereof and continuing until the earliest date on which any of the following events occur: (i) any 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 termination of the Merger Agreement for any reason; (iii) any default by the Company under the Subordinated Loan Agreement or under any other document executed in connection therewith; (iv) any failure by the Company 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 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 any Forbearance Default shall be known as the "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 Events of Default specified in clauses (a) and (b) above, subject to the terms and conditions set forth herein, the Agent and the Lenders 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 the Addendum to the Loan Agreement; (2) the failure of any Borrower to comply with any term set forth in this Consent and Forbearance Agreement, including, without limitation, the undertakings set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement and the other Loan Documents.”
Appears in 1 contract
Sources: Consent and Forbearance Agreement (Resortquest International Inc)
Forbearance. Subject to all the satisfaction of the terms and conditions precedent set forth hereinin Section 2 hereof, the Agent Administrative Agents and the Lenders hereby agree to forbear from exercising their respective rights and remedies under taking any of the Loan Agreement and the other Loan Documents that are based solely on “Enforcement Actions” defined below as a result of the occurrence and continuation of the Specified Defaults until that date (the “Forbearance Termination Date”; solely during the period from beginning on the Effective Date and ending immediately upon the earliest of (such period being referred to herein as hereinafter defined) through the Forbearance Termination Date being the “Forbearance Period”)): (a) which is A▇▇▇▇ ▇▇, ▇▇▇▇, (▇) the earliest to occur occurrence of any Default under Section 8.01(f) or (g) of the followingCredit Agreement with respect to any Domestic Loan Party and (c) the termination of the Forbearance Period by the Domestic Administrative Agent, acting at the direction of the Required Lenders, due to: (1i) the date on which occurrence of any Default other than (i) the Specified Defaults occurs; or (ii) the Borrowers failure to comply with Item 19(a) of the Addendum to the Loan Agreement; (2) the failure of any Borrower Domestic Loan Party to timely comply with any term undertaking set forth in this Agreement, including, without limitation, or the undertakings breach by any Domestic Loan Party in any material respect of any representation or warranty set forth in Section 2 hereof; (3) the date that any Borrower joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Agent, any Lender, or any affiliate of any of the foregoing relating to any Obligations or any amounts owing hereunder, under the Loan Agreement or under any other Loan Document or in connection with or related to any of the transactions contemplated by the Loan Agreement or any of the other Loan Documents, including this Agreement and any documents, agreements or instruments executed in connection with this Agreement; , in each case unless the Required Lenders, in writing, waive such noncompliance or breach. “Enforcement Actions” shall mean any (41) the date commencement of judicial or non-judicial enforcement proceedings against 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 Domestic Loan Party with respect to the payment of any IndebtednessObligations or (2) commencement of any foreclosure, declaring an “event enforcement or levy against or seizure or transfer of default”all or any portion of the Domestic Collateral; provided, exercising default remedies that Enforcement Action shall not include any action by the Domestic Administrative Agent with respect to any collateral security); deposit account of the Domestic Loan Parties subject to a garnishment action or (5) 12:01 A.M. (New York time) on February 22similar action or proceeding with respect to claims by other creditors of the Domestic Loan Parties. “Domestic Loan Parties” shall mean, 2010. On and after the Forbearance Termination Datecollectively, 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 applicable law, including, without limitation, the right to require that the Borrowers repay immediately any amounts then owing under the Loan Agreement Domestic Borrower and the other Loan DocumentsDomestic Guarantors.”
Appears in 1 contract