Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(f) below) to and including the Termination Date (as defined below), subject to the terms of this Agreement and subject to the occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Defaults, (ii) the amendment and waiver of the Anticipated Defaults by the requisite Lenders under the terms of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"), the Administrative Agent's and the Lenders' agreement herein to forbear from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall have no commitment to make Revolver Advances or issue Letters of Credit or otherwise advance any funds to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor.
Appears in 1 contract
Samples: Limited Forbearance Agreement (Pinnacle Holdings Inc)
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(fa) below) to and including the Termination Date (as defined below), subject Subject to the terms and conditions of this Agreement and subject any documents or instruments executed in connection herewith, each Forbearing Holder (severally and not jointly) hereby agrees to the occurrence forbear (solely in its capacity as a beneficial holder of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Defaults, (ii) the amendment and waiver of the Anticipated Defaults by the requisite Lenders under the terms of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"Notes), and hereby instructs the Administrative Agent's and the Lenders' agreement herein Trustee to forbear forbear, in each case, from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall have no commitment to make Revolver Advances or issue Letters of Credit or otherwise advance any funds to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge Rights and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them Remedies with respect to any Persons other Specified Default during the Forbearance Period (the “Limited Forbearance”). For the avoidance of doubt, during the Forbearance Period, each Forbearing Holder agrees that (i) it (individually or collectively) will not deliver (and will not take any action to cause any registered holder of the Notes or any Depository or nominee thereof or participant therein to deliver) any notice, instruction or request to the Trustee directing the Trustee to exercise any of the Rights and Remedies against the Issuer or any of the Guarantors, any of their respective Subsidiaries or any property or assets of any of the foregoing with respect to the Specified Default and (ii) if the Trustee exercises (or commences to exercise or attempts to exercise) any Rights and Remedies with respect to any Specified Default, or if the Trustee is instructed or requested to exercise any Rights and Remedies by holders of more than 25% of the Borrower Notes, each Forbearing Holder (severally and other Persons guaranteeing not jointly) agrees to use reasonable efforts to cause the Obligations Trustee to rescind such exercise of Rights and Remedies, to the extent permitted under the Indenture. For purposes of this Section 2(a)(ii), the Parties agree that (x) the delivery of a letter from the Forbearing Holders to the Trustee instructing or providing collateral security therefordirecting that the relevant exercise of Rights and Remedies be rescinded will constitute “reasonable efforts,” and (y) the Forbearing Holders have no obligation to provide any indemnification in connection with any request made pursuant to this Section 2(a)(ii) (or otherwise pursuant to this Agreement).
Appears in 1 contract
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(fa) below) to and including the Termination Date (as defined below), subject Subject to the terms and conditions of this Agreement and subject any documents or instruments executed in connection herewith, each Forbearing Holder (severally and not jointly) hereby agrees to forbear (solely in its capacity as a beneficial holder of Notes), and hereby instructs the Trustee to forbear, in each case, from exercising any of the Rights and Remedies with respect to the occurrence Specified Default during the Forbearance Period (the “Limited Forbearance”). For the avoidance of no further Default or Event of Default either pursuant to doubt, during the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of Forbearance Period, each Forbearing Holder agrees that (i) it (individually or collectively) will not deliver (and will not take any action to cause any registered holder of the occurrence Notes or any Depository or nominee thereof or participant therein to deliver) any notice, instruction or request to the Trustee directing the Trustee to exercise any of the Rights and Remedies against the Issuer or any of the Guarantors, any of their respective Subsidiaries or any property or assets of any of the foregoing with respect to the Specified Default or Event of Default, other than the Anticipated Defaults, and (ii) if the amendment Trustee exercises (or commences to exercise or attempts to exercise) any Rights and waiver Remedies with respect to the Specified Default, or if the Trustee is instructed or requested to exercise any Rights and Remedies by holders of more than 30% of the Anticipated Defaults by Notes, each Forbearing Holder (severally and not jointly) agrees to use reasonable efforts to cause the requisite Lenders Trustee to rescind such exercise of Rights and Remedies, to the extent permitted under the terms Indenture. For purposes of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"this Section 2(a)(ii), the Administrative Agent's Parties agree that (x) the delivery of a letter from the Forbearing Holders to the Trustee instructing or directing that the relevant exercise of Rights and Remedies be rescinded will constitute “reasonable efforts,” and (y) the Lenders' agreement herein to forbear from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall Forbearing Holders have no commitment obligation to make Revolver Advances or issue Letters of Credit provide any indemnification in connection with any request made pursuant to this Section 2(a)(ii) (or otherwise advance any funds pursuant to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver AdvanceAgreement). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor.
Appears in 1 contract
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults during the period from the date hereof to and including December 12May 10, 20012002. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from commencing on the Effective Date (defined earliest date each of the conditions precedent set forth in Section 10(f10 hereof have been satisfied to, and (so long as none of the events specified in subsections 2(i) belowthrough 2(iv) to and including below has occurred) through, the Termination Date (as defined below), subject to the terms of this Agreement and subject to the occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Existing Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Existing Defaults, (ii) the amendment and waiver filing of, or exercise by, or the taking of any other action by Borrower, the Anticipated Defaults Parent or any of their Subsidiaries or by any third party of any right or remedy under any Debtor Relief Law with respect to the Borrower, the Parent or any of their Subsidiaries, (iii) the payment by the requisite Lenders under Borrower of any Distribution to the terms Parent or their Subsidiaries, or any Restricted Payment in connection with the Subordinated Notes, the Subordinated Notes Documentation, the Parent Senior Notes or the Parent Senior Note Documentation prohibited by Section 7 hereof, (iv) the failure of the Credit AgreementBorrower to initiate a wire transfer of immediately available funds to reimburse Administrative Agent within two business hours of a request by Administrative Agent for payment in connection with a drawn Letter of Credit, or (iiiv) December 12May 10, 2001 2002 (the "Termination Date"), the Administrative Agent's and the Lenders' agreement herein to forbear from exercising the rights and remedies available to them as the result of the Anticipated Existing Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as at law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Existing Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation limitation, the Anticipated Existing Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, that the Lenders shall have no commitment obligation to make Revolver Advances, Swingline Advances or issue Letters of Credit or otherwise advance any funds to the Borrower as a result of Borrower's termination of (i) the Commitment, (ii) the Swingline Commitment and (iii) the Letter of Credit Commitment, each on December 12, 2001. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereofhereof until the earlier of (i) the Termination Date, (ii) the Administrative Agent is otherwise directed in writing by Majority Lenders or (iii) the Borrower, the Parent or any of their Subsidiaries is granted relief under any Debtor Relief Laws. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to initiate a wire transfer to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement then to be effected by payment in full from the cash collateral account described in Section 4(i) hereof Cash Collateral Account or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two three sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of CreditCredit in accordance with the terms of the Credit Agreement. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor. Notwithstanding the forbearance contained in this Agreement, the issuance of a payment blockage notice by the Administrative Agent or any of the other Lenders to the Borrower and/or to the Trustee under the Subordinated Notes Indenture (as provided for in Section 5.5 of the Subordinated Notes Indenture) shall not be deemed to be an exercise of any right or remedy under the Credit Agreement or any of the other the Loan Papers, or the exercise of any right or remedy otherwise available at law or in equity, and shall not be prohibited by any provision of this Agreement.
Appears in 1 contract
Samples: Limited Forbearance Agreement (Pinnacle Holdings Inc)
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(f) below) to and including the Termination Date (as defined below), subject to the terms of this Agreement and subject to the occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Defaults, (ii) the amendment and waiver of the Anticipated Defaults by the requisite Lenders under the terms of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"), the Administrative Agent's and the Lenders' agreement herein to forbear from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as at law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall have no commitment to make Revolver Advances or issue Letters of Credit or otherwise advance any funds to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent Issuing Bank to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor.
Appears in 1 contract
Samples: Limited Forbearance Agreement (Pinnacle Holdings Inc)
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(fa) below) to and including the Termination Date (as defined below), subject Subject to the terms and conditions of this Agreement and subject any documents or instruments executed in connection herewith, each Forbearing Holder (severally and not jointly) hereby agrees to the occurrence forbear (solely in its capacity as a beneficial holder of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Defaults, (ii) the amendment and waiver of the Anticipated Defaults by the requisite Lenders under the terms of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"Notes), and hereby instructs the Administrative Agent's Second Lien Trustee and the Lenders' agreement herein Second Lien Collateral Agent to forbear forbear, in each case, from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall have no commitment to make Revolver Advances or issue Letters of Credit or otherwise advance any funds to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge Rights and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them Remedies with respect to any Persons other Specified Default during the Forbearance Period (the “Limited Forbearance”). For the avoidance of doubt, during the Forbearance Period, each Forbearing Holder agrees that (i) it (individually or collectively) will not deliver (and will not take any action to cause any registered holder of the Notes or any Depository or nominee thereof or participant therein to deliver) any notice, instruction or request to the Second Lien Trustee or the Second Lien Collateral Agent directing the Second Lien Trustee or the Second Lien Collateral Agent, as applicable, in each case, to exercise any of the Rights and Remedies against any of the Issuers or the Guarantors, any of their respective Subsidiaries or any property or assets of any of the foregoing with respect to the Specified Default and (ii) if the Second Lien Trustee or Second Lien Collateral Agent exercises (or commences to exercise or attempts to exercise) any Rights and Remedies with respect to any Specified Default, or if the Second Lien Trustee or Second Lien Collateral Agent is instructed or requested to exercise any Rights and Remedies by holders of more than 25% of the Borrower Notes, each Forbearing Holder (severally and other Persons guaranteeing not jointly) agrees to use reasonable efforts to cause the Obligations Second Lien Trustee or providing collateral security thereforSecond Lien Collateral Agent, as applicable, to rescind such exercise of Rights and Remedies. For purposes of this Section 2(a)(ii), the Parties agree that (x) the delivery of a letter from the Forbearing Holders to the Second Lien Trustee or Second Lien Collateral Agent, as applicable, instructing or directing that the relevant exercise of Rights and Remedies be rescinded will constitute “reasonable efforts,” and (y) the Forbearing Holders have no obligation to provide any indemnification in connection with any request made pursuant to this Section 2(a)(ii) (or otherwise pursuant to this Agreement).
Appears in 1 contract
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults during the period from the date hereof to and including December 12May 10, 20012002. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from commencing on the Effective Date (defined earliest date each of the conditions precedent set forth in Section 10(f10 hereof seen satisfied to, and (so long as none of the events specified in subsections 2(i) belowthrough 2(v) to and including below has occurred) through, the Termination Date (as defined below), subject to the terms of this Agreement and subject to the occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Existing Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Existing Defaults, (ii) the amendment filing of, or exercise by, or the taking of any other action by Borrower, the or any of their Subsidiaries or by any third party of any right or remedy under any Debtor Law with respect to the Borrower, the Parent or any of their Subsidiaries, (iii) the payment by the Borrower of any Distribution to the Parent or their Subsidiaries, or any Restricted Payment in connection with the Subordinated Notes, the Subordinated Notes Documentation, the Parent Senior Notes or the Parent Senior Note Documentation prohibited by Section 7 hereof, failure of Borrower to initiate a wire transfer of immediately available funds to reimburse Administrative Agent within two business hours of a request by Administrative Agent for payment in connection with a drawn Letter of Credit, (v) April 19, 2002, unless that certain commitment letter that was delivered to the Administrative Agent and waiver of distributed to the Anticipated Defaults Lenders prior to the date hereof, from two lenders to two proposed investors regarding a proposed loan to the Borrower, dated January 25, 2002 and currently expiring on April 15, 2002, has been expended by the same two lenders, on the same terms and to the same proposed investors as previously distributed to the Lenders, through or after May 10, 2002 (or extended through or after May 10, 2002 on other terms acceptable to the requisite Lenders under the terms of the Credit Agreement), or (iiivi) December 12May 10, 2001 2002 (the "Termination Date"), the Administrative Agent's and the Lenders' agreement herein to forbear from exercising the rights and remedies available to them as the result of the Anticipated Existing Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as at law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Existing Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation limitation, the Anticipated Existing Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, that the Lenders shall have no commitment obligation to make Revolver Advances, Swingline Advances or issue Letters of Credit or otherwise advance any funds to the Borrower as a result of Borrower's termination of (i) the Commitment, (ii) the Swingline Commitment and (iii) the Letter of Credit Commitment, each on December 12, 2001. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to initiate a wire transfer to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement then to be effected by payment in full from the cash collateral account described in Section 4(i) hereof Cash Collateral Account or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two three sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of CreditCredit in accordance with the terms of the Credit Agreement. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any HEREIN SHALL NOT IN ANY manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor. Notwithstanding the forbearance contained in this Agreement, the issuance of a payment blockage notice by the Administrative Agent or any of the other Lenders to the Borrower and/or to the Trustee under the Subordinated Notes Indenture (as provided for in Section 5.5 of the Subordinated Notes Indenture) shall not be deemed to be an exercise of any right or remedy under the Credit Agreement or any of the other the Loan Papers, or the exercise of any right or remedy otherwise available at law or in equity, and shall not be prohibited by any provision of this Agreement.
Appears in 1 contract
Samples: Limited Forbearance Agreement (Pinnacle Holdings Inc)
Limited Forbearance. The Borrower has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults during the period from the date hereof to and including December 12, 2001. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from the Effective Date (defined in Section 10(fa) below) to and including the Termination Date (as defined below), subject Subject to the terms and conditions of this Agreement and subject any documents or instruments executed in connection herewith, each Forbearing Holder (severally and not jointly) hereby agrees to the occurrence forbear (solely in its capacity as a beneficial holder of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Defaults, (ii) the amendment and waiver of the Anticipated Defaults by the requisite Lenders under the terms of the Credit Agreement, or (iii) December 12, 2001 (the "Termination Date"Notes), and hereby instructs the Administrative Agent's First Lien Trustee and the Lenders' agreement herein First Lien Collateral Agent to forbear forbear, in each case, from exercising the rights and remedies available to them as the result of the Anticipated Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation the Anticipated Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, the Lenders shall have no commitment to make Revolver Advances or issue Letters of Credit or otherwise advance any funds to the Borrower. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereof. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement to be effected by payment in full from the cash collateral account described in Section 4(i) hereof or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of Credit. The parties hereto further expressly acknowledge Rights and agree that the agreements of the Administrative Agent and the Lenders herein shall not in any manner restrict or impair any rights or remedies available to them Remedies with respect to any Persons other Specified Default during the Forbearance Period (the “Limited Forbearance”). For the avoidance of doubt, during the Forbearance Period, each Forbearing Holder agrees that (i) it (individually or collectively) will not deliver (and will not take any action to cause any registered holder of the Notes or any Depository or nominee thereof or participant therein to deliver) any notice, instruction or request to the First Lien Trustee or the First Lien Collateral Agent directing the First Lien Trustee or the First Lien Collateral Agent, as applicable, in each case, to exercise any of the Rights and Remedies against any of the Issuers or the Guarantors, any of their respective Subsidiaries or any property or assets of any of the foregoing with respect to the Specified Default and (ii) if the First Lien Trustee or First Lien Collateral Agent exercises (or commences to exercise or attempts to exercise) any Rights and Remedies with respect to any Specified Default, or if the First Lien Trustee or First Lien Collateral Agent is instructed or requested to exercise any Rights and Remedies by holders of more than 25% of the Borrower Notes, each Forbearing Holder (severally and other Persons guaranteeing not jointly) agrees to use reasonable efforts to cause the Obligations First Lien Trustee or providing collateral security thereforFirst Lien Collateral Agent, as applicable, to rescind such exercise of Rights and Remedies. For purposes of this Section 2(a)(ii), the Parties agree that (x) the delivery of a letter from the Forbearing Holders to the First Lien Trustee or First Lien Collateral Agent, as applicable, instructing or directing that the relevant exercise of Rights and Remedies be rescinded will constitute “reasonable efforts,” and (y) the Forbearing Holders have no obligation to provide any indemnification in connection with any request made pursuant to this Section 2(a)(ii) (or otherwise pursuant to this Agreement).
Appears in 1 contract
Limited Forbearance. The Borrower Borrowers has requested that the Administrative Agent and the Lenders forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults during the period from the date hereof to and including December April 12, 20012002. The Administrative Agent and the Lenders hereby agree to forbear from exercising the rights and remedies available to them as a result of the Anticipated Existing Defaults, including the right to demand default interest under Section 2.08 of the Credit Agreement, from commencing on the Effective Date (defined earliest date each of the conditions precedent set forth in Section 10(f10 hereof have been satisfied to, and (so long as none of the events specified in subsection 2(i) belowthrough 2(iv) to and including has occurred) through, the Termination Date (as defined below), subject to the terms of this Agreement and subject to the occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Anticipated occurrence of no further Default or Event of Default either pursuant to the Sections of the Credit Agreement subject to the Existing Defaults or otherwise. Upon the earlier of (i) the occurrence of any Default or Event of Default, other than the Anticipated Existing Defaults, (ii) the amendment and waiver filing of, or exercise by, or the taking of any other action by Borrower, the Anticipated Defaults Parent or any of their Subsidiaries or by any third party of any right or remedy under any Debtor Relief Law with respect to the Borrower, the Parent or any of their Subsidiaries, (iii) the payment by the requisite Lenders under Borrower of any Distribution to the terms Parent or their Subsidiaries, or any Restricted Payment in connection with the Subordinated Notes, the Subordinated Notes Documentation, the Parent Senior Notes or the Parent Senior Note Documentation prohibited by Section 7 hereof, (iv) the failure of the Credit AgreementBorrower to initiate a wire transfer of immediately available funds to reimburse Administrative Agent within two business hours of a request by Administrative Agent for payment in connection with a drawn Letter of Credit, or (iiiv) December April 12, 2001 2002 (the "Termination Date"), the Administrative Agent's and the Lenders' agreement herein to hereinto forbear from exercising the rights and remedies available to them as the result of the Anticipated Existing Defaults shall immediately terminate, and the Administrative Agent and the Lenders shall be entitled immediately to exercise any and all rights and remedies available under the Credit Agreement and any other Loan Paper, as at law, in equity, or otherwise, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, protest, or other formalities of any kind, all of which are hereby expressly waived by the Borrower. The Borrower and the Lenders hereby acknowledge Borrower's anticipated noncompliance with the Credit Agreement as a result of the Anticipated Existing Defaults and acknowledge Borrower's noncompliance with the Credit Agreement as a result of the Existing Defaults and acknowledge that this Agreement constitutes notice thereof and waive any and all further notices with respect thereto. The agreement of the Administrative Agent and the Lenders herein shall not constitute a waiver of any Default or Event of Default including without limitation limitation, the Anticipated Existing Defaults. The Borrower hereby acknowledges that, unless and until the Anticipated Defaults are waived by the requisite number of Lenders in accordance with the Credit Agreement, that the Lenders shall have no commitment obligation to make Revolver Advances, Swingline Advances or issue Letters of Credit or otherwise advance any funds to the Borrowers as a result of Borrower's termination of (i) the Commitment, (ii) the Swingline Commitment and (iii) the Letter of Credit Commitment, each on December 12, 2001. Notwithstanding any provision in the Credit Agreement or any other Loan Paper to the contrary, the parties hereto expressly acknowledge and agree that, until the Termination Date, the Administrative Agent may renew (but not increase) Letters of Credit in existence as of the date hereofhereof until the earlier of (i) the Termination Date, (ii) the Administrative Agent is otherwise directed in writing by Majority Lenders or (iii) the Borrower, the Parent or any of their Subsidiaries is granted relief under any Debtor Relief Laws. Notwithstanding any provision in the Credit Agreement or any other Loan Paper, the parties hereto expressly acknowledge and agree that, any draw under any Letter of Credit during the term of this Agreement shall immediately and automatically result in an obligation for the Borrower to reimburse the Administrative Agent for any such draw (which reimbursement obligation may not be paid by the Borrower with the proceeds of a Revolver Advance). Failure of the Borrower to initiate a wire transfer to reimburse the Administrative Agent in immediately available funds for any such draw within 2 business hours after receipt of notice of such draw shall constitute an Event of Default hereunder and under the Credit Agreement (such reimbursement then to be effected by payment in full from the cash collateral account described in Section 4(i) hereof Cash Collateral Account or by wire transfer of immediately available funds, or any combination of the foregoing). The parties hereto expressly acknowledge and agree that the agreement of the Borrower in the preceding two three sentences does not affect or abrogate any of the obligations of the Lenders to the Administrative Agent to participate in any such draws under the Letter of CreditCredit in accordance with the terms of the Credit Agreement. The parties hereto further expressly acknowledge and agree that the agreements of the Administrative Agent and the Lenders lenders herein shall not in any manner restrict or impair any rights or remedies available to them with respect to any Persons other than the Borrower and other Persons guaranteeing the Obligations or providing collateral security therefor. Notwithstanding the forbearance contained in this Agreement, the issuance of a payment blockage notice by the Administrative Agent or any of the other Lenders to the Borrower and/or to the Trustee under the Subordinated Notes Indenture (as provided for in Section 5.5 of the Subordinated Notes Indenture) shall not be deemed to be an exercise of any right or remedy under the Credit Agreement or any of the other the Loan Papers, or the exercise of any right or remedy otherwise available at law or in equity, and shall not be prohibited by any provision of this Agreement.
Appears in 1 contract
Samples: Limited Forbearance Agreement (Pinnacle Holdings Inc)
