THIS AGREEMENT AS ACCURATE AND COMPLETE
STATEMENTS OF FACT IN ALL MATERIAL RESPECTS.
WITHOUT LIMITING THE FOREGOING,
THE BORROWER PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT (A) THE EXISTING EVENTS
OF DEFAULT HAVE OCCURRED AND ARE CONTINUING UNDER THE TERMS OF THE CREDIT
AGREEMENT, AND THAT NONE OF THE LOAN PARTIES HAVE ANY DISPUTES, DEFENSES OR
COUNTERCLAIMS OF ANY KIND WITH RESPECT THERETO; (B) THE LENDERS ARE UNDER NO
OBLIGATION TO MAKE LOANS OR OTHER FINANCIAL ACCOMMODATIONS TO THE COMPANY UNDER
THE CREDIT AGREEMENT; (C) THE AGENT, ON BEHALF OF THE LENDERS HAS, AND SHALL
CONTINUE TO HAVE, VALID, ENFORCEABLE AND PERFECTED SECURITY INTERESTS IN AND
LIENS UPON THE COLLATERAL HERETOFORE GRANTED BY THE COMPANY TO THE AGENT AND
LENDERS PURSUANT TO THE LOAN DOCUMENTS OR OTHERWISE GRANTED TO OR HELD BY THE
AGENT OR THE LENDERS; (D) ABSENT THE EFFECTIVENESS OF THIS AGREEMENT, THE AGENT
AND LENDERS HAVE THE RIGHT TO IMMEDIATELY ENFORCE THEIR SECURITY INTEREST IN,
AND LIENS ON, THE COLLATERAL AND TO EXERCISE ANY AND ALL REMEDIES AVAILABLE TO
THEM UNDER THE CREDIT AGREEMENT, AT LAW AND IN EQUITY; AND (E) THE OUTSTANDING
LOANS AND ALL OTHER OBLIGATIONS ARE PAYABLE PURSUANT TO THE CREDIT AGREEMENT,
WITHOUT DEFENSE, DISPUTE, OFFSET, WITHHOLDING, RECOUPMENT, COUNTERCLAIM OR
DEDUCTION OF ANY KIND (OTHER THAN AS PROVIDED IN SECTION 2.7 OF THE CREDIT
AGREEMENT).
2.
FORBEARANCE.
(A)
THE BORROWER PARTIES AGREE AND ACKNOWLEDGE THAT THE EXISTING
EVENTS OF DEFAULT SET FORTH ON SCHEDULE I HAVE OCCURRED AND ARE CONTINUING.
(B)
THE COMPANY HAS ADVISED THE AGENT THAT THE COMPANY WILL LIKELY NOT
BE IN COMPLIANCE WITH CERTAIN PROVISIONS OF THE CREDIT AGREEMENT WHICH WOULD
GIVE RISE TO THE ANTICIPATED DEFAULTS SET FORTH ON SCHEDULE II.
(c)
The Borrower Parties hereby agree and acknowledge that
(i) Schedule I represents a complete and accurate list of all Existing Events of
Default which are in existence as of the Effective Date (as hereinafter
defined); and (ii) Schedule II represents a complete and accurate list of all
instances in which the Company may not be in compliance with the Credit
Agreement during the Forbearance Period.
(d)
Provided that no Forbearance Default (as defined below) occurs,
subject to the terms and conditions of this Agreement and satisfaction of the
conditions precedent to the effectiveness of this Agreement set forth in
Section 3 below, during the Forbearance Period, the Agent and the Lenders hereby
forbear from exercising, on account of the Existing Events of Default and
Anticipated Defaults, those rights and remedies afforded to them under the
Credit Agreement, the other Loan Documents and applicable law.
3.
Conditions of Effectiveness of this Agreement.
This Agreement shall become
effective as of the date hereof (the "Effective Date") when, and only when:
2
(A)
THE AGENT SHALL HAVE RECEIVED COUNTERPARTS OF THIS AGREEMENT DULY
EXECUTED AND DELIVERED BY THE BORROWER PARTIES AND THE REQUISITE LENDERS;
(B)
ALL OF THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER PARTIES
CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT ON AND AS OF THE EFFECTIVE