Common use of Representations, Warranties and Agreements of the Issuers Clause in Contracts

Representations, Warranties and Agreements of the Issuers. (a) In order to induce the Forbearing Holders to enter into this Agreement, the Issuers hereby represent and warrant to the Forbearing Holders as follows: Each of the Issuers and the Guarantors has the power and authority to execute, deliver and perform this Agreement. Each of the Issuers and the Guarantors has taken all necessary action to authorize its execution, delivery and performance of this Agreement. No consent, approval or authorization of, or declaration or filing with, any governmental authority, and no consent of any other Person, is required in connection with any Issuer’s or Guarantor’s execution, delivery and performance of this Agreement, except for those already duly obtained. This Agreement has been duly executed and delivered by each of the Issuers and the Guarantors and constitutes the legal, valid and binding obligation of each of the Issuers and the Guarantors, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). Each of the Issuers’ and the Guarantors’ execution, delivery or performance of this Agreement does not conflict with, or constitute a violation or breach of (i) any material contract, mortgage, lease, agreement, indenture or instrument to which any of the Issuers or Guarantors is a party or which is binding upon them or any one of them or any of their properties, (ii) any law or regulation or order or decree of any court applicable to any of the Issuers or the Guarantors, or (iii) the certificate of incorporation and bylaws, or the certificate of formation and operating agreement, as applicable, of any of the Issuers or Guarantors. In addition, each of the Issuers and Guarantors hereby represent and warrant that, subject to the Txxxx Xxxxxxx 0000, Xxxxxx Xxxxxxx 0000 and First Quarter 2013 Excess Cash Flow Prepayment Defaults, the anticipated Second Quarter 2013 Excess Cash Flow Prepayment Default and the anticipated Financial Covenant Defaults, no Default or Event of Default exists under the Indenture. There is no material fact presently and actually known to any Issuer or Guarantor which has not been disclosed to the Forbearing Holders which materially adversely affects or could reasonably be expected to materially adversely affect, the Collateral, the Issuers, the Guarantors or the Issuers’ or the Guarantors’ business or operations. All data and information, including any financial statements, that have been delivered to the Forbearing Holders by any Issuer or Guarantor in connection with this Agreement are true, complete and correct in all material respects and do not contain any knowingly untrue statement of material fact. Each of the Issuers and the Guarantors hereby acknowledge and agree that, as a result of the Acceleration, the Applicable Prepayment Premium is currently due and owing.

Representations, Warranties and Agreements of the Issuers. (a) In order to induce the Forbearing Holders to enter into this Agreement, the Issuers hereby represent and warrant to the Forbearing Holders as follows: Each of the Issuers and the Guarantors has the power and authority to execute, deliver and perform this Agreement. Each of the Issuers and the Guarantors has taken all necessary action to authorize its execution, delivery and performance of this Agreement. No consent, approval or authorization of, or declaration or filing with, any governmental authority, and no consent of any other Person, is required in connection with any Issuer’s or Guarantor’s execution, delivery and performance of this Agreement, except for those already duly obtained. This Agreement has been duly executed and delivered by each of the Issuers and the Guarantors and constitutes the legal, valid and binding obligation of each of the Issuers and the Guarantors, enforceable against them in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). Each of the Issuers’ and the Guarantors’ execution, delivery or performance of this Agreement does not conflict with, or constitute a violation or breach of (i) any material contract, mortgage, lease, agreement, indenture or instrument to which any of the Issuers or Guarantors is a party or which is binding upon them or any one of them or any of their properties, (ii) any law or regulation or order or decree of any court applicable to any of the Issuers or the Guarantors, or (iii) the certificate of incorporation and bylaws, or the certificate of formation and operating agreement, as applicable, of any of the Issuers or Guarantors. In addition, each of the Issuers and Guarantors hereby represent and warrant that, subject to the Txxxx Xxxxxxx 0000, Xxxxxx Xxxxxxx 0000 and First Quarter 2013 Excess Cash Flow Prepayment Defaults, the an anticipated Second Quarter 2013 Excess Cash Flow Prepayment Default and the anticipated Financial Covenant Defaultson November 5, 2012, no Default or Event of Default exists under the Indenture. There is no material fact presently and actually known to any Issuer or Guarantor which has not been disclosed to the Forbearing Holders which materially adversely affects or could reasonably be expected to materially adversely affect, the Collateral, the Issuers, the Guarantors or the Issuers’ or the Guarantors’ business or operations. All data and information, including any financial statements, that have been delivered to the Forbearing Holders by any Issuer or Guarantor in connection with this Agreement are true, complete and correct in all material respects and do not contain any knowingly untrue statement of material fact. Each of the Issuers and the Guarantors hereby acknowledge and agree that, as a result of the Acceleration, the Applicable Prepayment Premium is currently due and owing.