REPRESENTATIONS AND WARRANTIES OF EACH
OF THE COMPANY AND THE SUBSIDIARIES IN THE LOAN DOCUMENTS ARE ON THE DATE OF
EXECUTION AND DELIVERY OF THIS AGREEMENT, AND WILL BE ON THE FORBEARANCE
EFFECTIVE DATE, TRUE, CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS WITH THE
SAME EFFECT AS THOUGH MADE ON AND AS OF SUCH RESPECTIVE DATE (OR, TO THE EXTENT
SUCH REPRESENTATIONS AND WARRANTIES EXPRESSLY RELATE TO AN EARLIER DATE, ON AND
AS OF SUCH EARLIER DATE), EXCEPT TO THE EXTENT OF ANY INACCURACY RESULTING
SOLELY FROM THE SPECIFIED DEFAULTS.
5
(B)
EXCEPT FOR THE SPECIFIED DEFAULTS OR AS
OTHERWISE EXPRESSLY PROVIDED HEREIN, THE COMPANY AND EACH OF THE SUBSIDIARIES IS
IN COMPLIANCE WITH ALL OF THE TERMS AND PROVISIONS SET FORTH IN THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS ON ITS PART TO BE OBSERVED OR PERFORMED,
AND NO EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
(C)
THE EXECUTION, DELIVERY AND PERFORMANCE BY
EACH OF THE COMPANY AND THE SUBSIDIARIES OF THIS AGREEMENT:
(I)
ARE WITHIN ITS CORPORATE OR LIMITED PARTNERSHIP POWERS, AS
APPLICABLE;
(II)
HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE OR LIMITED
PARTNERSHIP ACTION, AS APPLICABLE, INCLUDING THE CONSENT OF THE HOLDERS OF ITS
EQUITY INTERESTS WHERE REQUIRED;
(III)
DO NOT AND WILL NOT (A) CONTRAVENE ITS CERTIFICATE OF
INCORPORATION OR BY-LAWS OR LIMITED PARTNERSHIP OR OTHER CONSTITUENT DOCUMENTS,
AS APPLICABLE, (B) VIOLATE ANY APPLICABLE REQUIREMENT OF LAW OR ANY ORDER OR
DECREE OF ANY GOVERNMENTAL AUTHORITY OR ARBITRATOR APPLICABLE TO IT, (C)
CONFLICT WITH OR RESULT IN THE BREACH OF, OR CONSTITUTE A DEFAULT UNDER, OR
RESULT IN OR PERMIT THE TERMINATION OR ACCELERATION OF, ANY CONTRACTUAL
OBLIGATION OF THE COMPANY OR ANY OF THE SUBSIDIARIES, OR (D) RESULT IN THE
CREATION OR IMPOSITION OF ANY LIEN OR ENCUMBRANCE UPON ANY OF THE PROPERTY OF
THE COMPANY OR ANY OF THE SUBSIDIARIES; AND
(IV)
DO NOT AND WILL NOT REQUIRE THE CONSENT OF, AUTHORIZATION BY,
APPROVAL OF, NOTICE TO, OR FILING OR REGISTRATION WITH, ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER PERSON, OTHER THAN THOSE WHICH PRIOR TO THE FORBEARANCE
EFFECTIVE DATE WILL HAVE BEEN OBTAINED OR MADE AND COPIES OF WHICH PRIOR TO THE
FORBEARANCE EFFECTIVE DATE WILL HAVE BEEN DELIVERED TO THE LENDER AND EACH OF
WHICH ON THE FORBEARANCE EFFECTIVE DATE WILL BE IN FULL FORCE AND EFFECT.
(D)
THIS AGREEMENT HAS BEEN DULY EXECUTED AND
DELIVERED BY THE COMPANY AND EACH OF THE SUBSIDIARIES.
EACH OF THIS AGREEMENT,
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTES THE LEGAL, VALID AND
BINDING OBLIGATION OF THE COMPANY AND THE SUBSIDIARIES, ENFORCEABLE AGAINST EACH
SUCH PERSON IN ACCORDANCE WITH ITS TERMS, EXCEPT AS MAY BE LIMITED BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER SIMILAR LAWS
RELATING TO OR LIMITING CREDITORS' RIGHTS GENERALLY OR BY EQUITABLE PRINCIPLES
RELATING TO ENFORCEABILITY.
(E)
WITHIN FIVE (5) BUSINESS DAYS AFTER THE
FORBEARANCE EFFECTIVE DATE, THE COMPANY SHALL FILE THIS AGREEMENT AND THE
NOTEHOLDER FORBEARANCE AGREEMENT WITH THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION AS AN