(THE "SECOND AMENDED FORBEARANCE EFFECTIVE
DATE") ON WHICH EACH OF THE FOLLOWING CONDITIONS IS SATISFIED AND EVIDENCE OF
ITS SATISFACTION HAS BEEN DELIVERED TO COUNSEL TO THE LENDER:
(A)
THERE SHALL HAVE BEEN DELIVERED TO THE LENDER IN ACCORDANCE WITH
SECTION 6.5 HEREIN, COUNTERPARTS OF THIS SECOND AMENDED FORBEARANCE AGREEMENT
EXECUTED BY EACH OF THE LENDER, THE COMPANY AND EACH OF THE SUBSIDIARIES;
(B)
THE LENDER SHALL HAVE RECEIVED THE SECOND AMENDED NOTEHOLDER
FORBEARANCE AGREEMENT, DULY EXECUTED AND DELIVERED BY EACH OF THE COMPANY, THE
SUBSIDIARIES, THE TRUSTEE AND THE NOTEHOLDERS, HAVING A FORBEARANCE PERIOD (AS
DEFINED THEREIN) (SUBJECT TO EARLIER TERMINATION UPON THE OCCURRENCE AND
CONTINUATION OF A FORBEARANCE DEFAULT, AS DEFINED THEREIN) THROUGH AND INCLUDING
A DATE THAT IS NO EARLIER THAN OCTOBER 16, 2007, AND SUCH SECOND AMENDED
NOTEHOLDER FORBEARANCE AGREEMENT SHALL OTHERWISE BE SATISFACTORY IN FORM AND
SUBSTANCE TO THE LENDER; AND
5
(C)
THE LENDER SHALL HAVE RECEIVED ALL ACCRUED AND UNPAID COSTS AND
EXPENSES (INCLUDING LEGAL FEES AND EXPENSES) REQUIRED TO BE PAID PURSUANT HERETO
OR THE LOAN AGREEMENT ON OR PRIOR TO THE SECOND AMENDED FORBEARANCE EFFECTIVE
DATE.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND THE
SUBSIDIARIES. TO INDUCE THE LENDER TO ENTER INTO THIS SECOND AMENDED FORBEARANCE
AGREEMENT, EACH OF THE COMPANY AND THE SUBSIDIARIES HEREBY REPRESENTS, WARRANTS
AND COVENANTS TO THE LENDER AS FOLLOWS:
(A)
THE 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 SECOND AMENDED FORBEARANCE AGREEMENT, AND WILL BE ON THE SECOND AMENDED
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.
(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 SECOND AMENDED FORBEARANCE 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