UNDER THE EXCHANGE AGREEMENT IS HEREBY MADE TO
EACH LENDER AND AGENT UNDER THIS AGREEMENT ON THE DATE OF THIS AGREEMENT AND IS
INCORPORATED HEREIN BY THIS REFERENCE AS IF FULLY SET FORTH HEREIN.
4.2
REPRESENTATIONS AND WARRANTIES OF LENDERS.
EACH LENDER REPRESENTS
AND WARRANTS TO BORROWER THAT SUCH LENDER: (I) WILL ACQUIRE THE NOTE FOR ITS OWN
ACCOUNT FOR INVESTMENT AND (SUBJECT TO THE DISPOSITION OF ITS PROPERTY BEING AT
ALL TIMES WITHIN ITS CONTROL) NOT WITH A VIEW TO ANY RESALE OR OTHER
DISTRIBUTION OF SUCH NOTE IN A TRANSACTION CONSTITUTING A PUBLIC OFFERING OR
OTHERWISE REQUIRING REGISTRATION UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR IN A TRANSACTION THAT WOULD RESULT IN NONCOMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS; (II) HAS SUCH KNOWLEDGE AND EXPERIENCE IN
FINANCIAL AND BUSINESS MATTERS AS TO BE CAPABLE OF EVALUATING THE MERITS AND THE
RISKS OF ITS ACQUISITION OF THE NOTE AND CREDIT EXTENSIONS TO BORROWER AND
ADDITIONAL BORROWER, (III) IS AN ACCREDITED INVESTOR AS SUCH TERM IS DEFINED IN
RULE 501 OF REGULATION D UNDER THE SECURITIES ACT, AND (IV) UNDERSTANDS THAT THE
NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE SECURITIES ACT OR ANY
STATE SECURITIES LAWS.
SECTION 5.
COVENANTS.
5.1
COVENANTS.
SO LONG AS ANY OF THE OBLIGATIONS SHALL REMAIN UNPAID,
EACH OF HOLDINGS AND BORROWER AGREES THAT:
(A)
REPORTING OBLIGATION.
HOLDINGS AND BORROWER SHALL FURNISH TO
AGENT, PROMPTLY AFTER HOLDINGS OR BORROWER HAS KNOWLEDGE OR BECOMES AWARE
THEREOF, NOTICE OF THE OCCURRENCE OF ANY DEFAULT OR EVENT OF DEFAULT.
(B)
PRESERVATION OF EXISTENCE.
HOLDINGS AND BORROWER SHALL, AND SHALL
CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO, MAINTAIN AND PRESERVE ITS
CORPORATE (OR EQUIVALENT) EXISTENCE, EXCEPT FOR THE DISSOLUTION OF ANY SHELL OR
DORMANT SUBSIDIARY AND EXCEPT IN CONNECTION WITH ANY TRANSACTIONS EXPRESSLY
PERMITTED BY SECTION 5.1(G).
(C)
LICENSES.
HOLDINGS AND BORROWER SHALL, AND SHALL CAUSE EACH OF
THEIR RESPECTIVE SUBSIDIARIES TO, OBTAIN AND MAINTAIN ALL LICENSES,
AUTHORIZATIONS, CONSENTS, FILINGS, EXEMPTIONS, REGISTRATIONS AND OTHER
GOVERNMENTAL APPROVALS OF ANY GOVERNMENTAL AUTHORITY NECESSARY OR DESIRABLE
(I) IN CONNECTION WITH THE EXECUTION, DELIVERY AND PERFORMANCE OF THE LOAN
DOCUMENTS, OR THE CONSUMMATION OF THE TRANSACTIONS THEREIN CONTEMPLATED, OR
(II) IN THE NORMAL COURSE OF ITS BUSINESS AND OPERATIONS AND THE OWNERSHIP OF
ITS PROPERTIES, EXCEPT, IN THE CASE OF THIS CLAUSE (II), TO THE EXTENT THAT THE
FAILURE TO DO SO COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE CHANGE.
(D)
COMPLIANCE WITH LAWS.
HOLDINGS AND BORROWER SHALL COMPLY, AND SHALL
CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO COMPLY, IN ALL MATERIAL RESPECTS
WITH ALL REQUIREMENTS OF LAW OF ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION
OVER IT OR ITS BUSINESS, EXCEPT SUCH AS
21
MAY BE CONTESTED IN GOOD FAITH OR AS TO WHICH A BONA FIDE DISPUTE MAY EXIST OR
WHERE NONCOMPLIANCE COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE CHANGE.
(E)
PAYMENT OF OBLIGATIONS.
HOLDINGS AND BORROWER SHALL, AND SHALL
CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO, PAY AND