BE WITHIN THE LIMITS OF ENFORCEABILITY OR VALIDITY;
PROVIDED, HOWEVER, IF THE OFFENDING PROVISION CANNOT BE SO MODIFIED, IT SHALL BE
STRICKEN AND ALL OTHER PROVISIONS OF THIS AGREEMENT IN ALL OTHER RESPECTS SHALL
REMAIN VALID AND ENFORCEABLE.
SECTION 15.
TIME OF ESSENCE.
TIME IS OF THE
ESSENCE IN THE PERFORMANCE OF EACH OF THE OBLIGATIONS OF THE BORROWERS HEREUNDER
AND WITH RESPECT TO ALL CONDITIONS TO BE SATISFIED BY SUCH PARTIES.
SECTION 16.
NO OTHER CREDITOR ACTION.
THE
LENDER'S AGREEMENT TO FORBEAR AND TO CONTINUE TO MAKE ADVANCES HEREUNDER ARE
EXPRESSLY CONDITIONED UPON ALL OTHER CREDITORS OF THE BORROWERS HAVING A VALID
CLAIM IN EXCESS OF $100,000 REFRAINING FROM TAKING ANY ACTION AGAINST ANY
BORROWER OR THE COLLATERAL (INCLUDING, WITHOUT LIMITATION, ACCELERATION OF
INDEBTEDNESS) DURING THE FORBEARANCE PERIOD TO COLLECT ITS CLAIM.
IN THE EVENT
THAT ANY SUCH CREDITOR TAKES ANY SUCH ACTION, ALL OF THE LENDER' OBLIGATIONS
HEREUNDER SHALL, AT THE OPTION OF THE LENDER, TERMINATE WITHOUT FURTHER NOTICE
OR DEMAND, AND SECTIONS 4(B) - (D) OF THIS AGREEMENT SHALL APPLY.
SECTION 17.
FURTHER ASSURANCES.
EACH
BORROWER AGREES TO, AND TO CAUSE ANY OTHER BORROWER TO, TAKE ALL FURTHER ACTIONS
AND EXECUTE ALL FURTHER DOCUMENTS AS THE LENDER MAY FROM TIME TO TIME REASONABLY
REQUEST TO CARRY OUT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND ALL
OTHER AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH.
SECTION 18.
SECTION HEADINGS.
SECTION HEADINGS IN THIS AGREEMENT ARE INCLUDED HEREIN FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT CONSTITUTE PART OF THIS AGREEMENT FOR ANY OTHER
PURPOSE.
SECTION 19.
NOTICES.
ALL NOTICES, REQUESTS,
AND DEMANDS TO OR UPON THE RESPECTIVE PARTIES HERETO SHALL BE GIVEN IN
ACCORDANCE WITH THE LOAN AGREEMENT.
SECTION 20.
EFFECTIVENESS.
THIS AGREEMENT
SHALL BECOME EFFECTIVE ON THE FORBEARANCE EFFECTIVE DATE, PROVIDED THAT ALL OF
THE FOLLOWING CONDITIONS PRECEDENT HAVE BEEN MET (OR WAIVED) AS DETERMINED BY
THE LENDER IN ITS SOLE DISCRETION:
(A)
AGREEMENT.
THE LENDER SHALL HAVE RECEIVED DULY EXECUTED SIGNATURE
PAGES FOR THIS AGREEMENT SIGNED BY THE LENDER AND ALL BORROWERS.
EACH OF THE
BORROWERS HEREBY REPRESENTS THAT IT HAS RECEIVED ALL NECESSARY INTERNAL CONSENTS
TO ENTER INTO THIS AGREEMENT.
(B)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN SHALL BE TRUE AND CORRECT, AND EXCEPT AS EXPRESSLY
SET FORTH HEREIN WITH RESPECT TO THE SPECIFIED DEFAULTS, NO FORBEARANCE DEFAULT,
DEFAULT, EVENT OF DEFAULT OR EVENT WHICH WITH NOTICE, THE PASSAGE OF TIME OR
BOTH WOULD CONSTITUTE A FORBEARANCE DEFAULT OR AN EVENT OF DEFAULT (OTHER THAN
THE SPECIFIED DEFAULTS) SHALL EXIST ON THE DATE HEREOF.
SECTION 21.
WAIVERS BY THE BORROWERS.
(A)
WAIVER OF JURY TRIAL RIGHT AND OTHER MATTERS.
EACH BORROWER
HEREBY WAIVES (I) THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY LOAN
DOCUMENTS, THE OBLIGATIONS UNDER THE
12
LOAN DOCUMENTS, OR THE COLLATERAL; (II) PRESENTMENT, DEMAND AND PROTEST, AND
NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NONPAYMENT, MATURITY, RELEASE WITH
RESPECT TO ALL OR ANY PART