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 SIXTH 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;
6
(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 SIXTH AMENDED
FORBEARANCE EFFECTIVE DATE WILL HAVE BEEN OBTAINED OR MADE AND COPIES OF WHICH
PRIOR TO THE SIXTH AMENDED FORBEARANCE EFFECTIVE DATE WILL HAVE BEEN DELIVERED
TO THE LENDER AND EACH OF WHICH ON THE SIXTH AMENDED FORBEARANCE EFFECTIVE DATE
WILL BE IN FULL FORCE AND EFFECT.
(D)
THIS SIXTH AMENDED FORBEARANCE AGREEMENT HAS BEEN DULY EXECUTED
AND DELIVERED BY THE COMPANY AND EACH OF THE SUBSIDIARIES.
EACH OF THIS SIXTH
AMENDED FORBEARANCE 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 SIXTH AMENDED FORBEARANCE
EFFECTIVE DATE, THE COMPANY SHALL FILE THIS SIXTH AMENDED FORBEARANCE AGREEMENT
AND THE SIXTH AMENDED NOTEHOLDER FORBEARANCE AGREEMENT WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION AS AN EXHIBIT TO A FILING BY THE COMPANY ON
FORM 8-K PURSUANT TO THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, WHICH
8-K FILING AND ANY ACCOMPANYING PRESS RELEASE SHALL BE IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO THE LENDER.
(F)
THE COMPANY AND THE SUBSIDIARIES SHALL IMMEDIATELY NOTIFY THE
LENDER UPON ITS OR THEIR BECOMING AWARE OF (I) AN EVENT OF DEFAULT UNDER THE
LOAN AGREEMENT OR AN EVENT OF DEFAULT (AS DEFINED IN THE INDENTURE) UNDER THE
INDENTURE THAT IS NOT A SPECIFIED DEFAULT OR THE EVENTS OF DEFAULT RESULTING
SOLELY FROM THE COMPANY'S FAILURE TO MAKE THE SCHEDULED