TERMINATION UPON THE OCCURRENCE AND CONTINUATION OF
A FORBEARANCE DEFAULT, AS DEFINED THEREIN) THROUGH AND INCLUDING A DATE THAT IS
NO EARLIER THAN SEPTEMBER 16, 2007, AND SUCH AMENDED NOTEHOLDER FORBEARANCE
AGREEMENT SHALL OTHERWISE BE SATISFACTORY IN FORM AND SUBSTANCE TO THE LENDER;
AND
(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 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 FIRST AMENDED
FORBEARANCE AGREEMENT, EACH OF THE COMPANY AND THE SUBSIDIARIES HEREBY
REPRESENTS, WARRANTS AND COVENANTS TO THE LENDER AS FOLLOWS:
5
(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 FIRST AMENDED FORBEARANCE AGREEMENT, AND WILL BE ON THE 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 FIRST 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 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 AMENDED
FORBEARANCE EFFECTIVE DATE WILL HAVE BEEN OBTAINED OR MADE AND COPIES OF WHICH
PRIOR TO THE AMENDED