DATE (UNLESS STATED TO RELATE SOLELY TO AN EARLIER DATE, IN WHICH CASE SUCH
REPRESENTATIONS AND WARRANTIES SHALL BE TRUE AND CORRECT AS OF SUCH EARLIER
DATE);
(C)
THE AGENT SHALL HAVE RECEIVED, FOR THE ACCOUNT AND BENEFIT OF THE
LENDERS, A FORBEARANCE FEE IN CASH IN THE AMOUNT OF 0.5% OF THE AGGREGATE
OUTSTANDING AMOUNT OF LOANS ON THE DATE HEREOF; AND
(D)
THE AGENT SHALL HAVE RECEIVED PAYMENT IN FULL OF ALL FEES AND
EXPENSES DUE AND PAYABLE IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE
CREDIT AGREEMENT (INCLUDING THE REASONABLE AND DOCUMENTED LEGAL FEES AND
EXPENSES OF THE AGENT'S COUNSEL AND THE FEES AND OUT-OF-POCKET EXPENSES OF ITS
FINANCIAL ADVISOR, CONWAY DEL GENIO GRIES & CO. ("CDG") INVOICED AT LEAST ONE
DAY PRIOR TO THE ANTICIPATED EFFECTIVE DATE OF THIS AGREEMENT).
4.
REPRESENTATIONS AND WARRANTIES.
TO INDUCE THE AGENT AND THE REQUISITE
LENDERS TO ENTER INTO THIS AGREEMENT, EACH BORROWER PARTY REPRESENTS AND
WARRANTS TO THE AGENT AND THE LENDERS (WHICH REPRESENTATIONS AND WARRANTIES
SHALL BE MADE ON AND AS OF THE EFFECTIVE DATE):
(A)
EACH BORROWER PARTY HAS THE REQUISITE CORPORATE POWER AND
AUTHORITY AND THE LEGAL RIGHT TO EXECUTE AND DELIVER THIS AGREEMENT, AND TO
PERFORM THE TRANSACTIONS CONTEMPLATED HEREBY.
THE EXECUTION, DELIVERY AND
PERFORMANCE BY EACH BORROWER PARTY OF THIS AGREEMENT, (I) ARE WITHIN SUCH
BORROWER PARTY'S CORPORATE POWER; (II) HAVE BEEN DULY AUTHORIZED BY ALL
NECESSARY CORPORATE OR OTHER ACTION; (III) DO NOT CONTRAVENE OR CAUSE SUCH
BORROWER PARTY OR ANY OTHER LOAN PARTY TO BE IN DEFAULT UNDER (X) ANY PROVISION
OF THE SUCH BORROWER PARTY'S OR OTHER LOAN PARTY'S FORMATION DOCUMENTS OR
BYLAWS, (Y) ANY CONTRACTUAL RESTRICTION CONTAINED IN ANY INDENTURE, LOAN OR
CREDIT AGREEMENT, LEASE, MORTGAGE, SECURITY AGREEMENT, BOND, NOTE OR OTHER
AGREEMENT OR INSTRUMENT BINDING ON OR AFFECTING SUCH BORROWER PARTY OR OTHER
LOAN PARTY OR ITS PROPERTY, OR (Z) ANY LAW, RULE, REGULATION, ORDER, LICENSE
REQUIREMENT, WRIT, JUDGMENT, AWARD, INJUNCTION, OR DECREE APPLICABLE TO, BINDING
ON OR AFFECTING SUCH BORROWER PARTY OR OTHER LOAN PARTY OR ITS PROPERTY;
(IV) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN UPON ANY OF THE
PROPERTY OF SUCH BORROWER PARTY OR OTHER LOAN PARTY OR ANY SUBSIDIARY THEREOF
OTHER THAN THOSE IN FAVOR OF THE AGENT OR ANY LENDER, ALL PURSUANT TO THE LOAN
DOCUMENTS; AND (E) DO NOT REQUIRE THE CONSENT OR APPROVAL OF ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER PERSON, OTHER THAN THOSE WHICH HAVE BEEN DULY OBTAINED,
MADE OR COMPLIED WITH AND WHICH ARE IN FULL FORCE AND EFFECT AND EXCEPT, IN EACH
CASE, TO THE EXTENT SUCH CONTRAVENTION, DEFAULT, LIEN OR FAILURE TO OBTAIN SUCH
APPROVAL OR CONSENT COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL
ADVERSE EFFECT.
(B)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY EACH
BORROWER PARTY.
EACH OF THIS AGREEMENT, THE CREDIT AGREEMENT (AS MODIFIED
HEREIN) AND THE LOAN DOCUMENTS (AS MODIFIED HEREBY) TO WHICH EACH BORROWER PARTY
IS A PARTY IS THE LEGAL, VALID AND