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
6
DEFAULT OR AN EVENT OF DEFAULT RESULTING SOLELY FROM THE COMPANY'S FAILURE TO
MAKE THE SCHEDULED INTEREST PAYMENT DUE UNDER THE NOTES ON JULY 15, 2007 OR (II)
THE OCCURRENCE OF A FORBEARANCE DEFAULT (AS DEFINED IN THE NOTEHOLDER
FORBEARANCE AGREEMENT).
3.2
SURVIVAL.
THE REPRESENTATIONS AND
WARRANTIES IN SECTION 3.1 SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE FORBEARANCE EFFECTIVE DATE.
ARTICLE IV
GENERAL RELEASE; REAFFIRMATION OF INDEMNITY
(A)
IN CONSIDERATION OF, AMONG OTHER THINGS,
THE LENDER'S EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND
THE SUBSIDIARIES, ON BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS
(COLLECTIVELY, "RELEASORS"), HEREBY FOREVER AGREES AND COVENANTS NOT TO SUE OR
PROSECUTE AGAINST ANY RELEASEE (AS DEFINED BELOW) AND HEREBY FOREVER WAIVES,
RELEASES AND DISCHARGES TO THE FULLEST EXTENT PERMITTED BY LAW, EACH RELEASEE
FROM, ANY AND ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, CROSSCLAIMS,
COUNTERCLAIMS, RIGHTS OF SET-OFF AND RECOUPMENT), ACTIONS, CAUSES OF ACTION,
SUITS, DEBTS, ACCOUNTS, INTERESTS, LIENS, PROMISES, WARRANTIES, DAMAGES AND
CONSEQUENTIAL AND PUNITIVE DAMAGES, DEMANDS, AGREEMENTS, BONDS, BILLS,
SPECIALTIES, COVENANTS, CONTROVERSIES, VARIANCES, TRESPASSES, JUDGMENTS,
EXECUTIONS, COSTS, EXPENSES OR CLAIMS WHATSOEVER (COLLECTIVELY, THE "CLAIMS"),
THAT SUCH RELEASOR NOW HAS OR HEREAFTER MAY HAVE, OF WHATSOEVER NATURE AND KIND,
WHETHER KNOWN OR UNKNOWN, WHETHER NOW EXISTING OR HEREAFTER ARISING, WHETHER
ARISING AT LAW OR IN EQUITY, AGAINST THE LENDER IN ANY CAPACITY AND ITS
AFFILIATES, SHAREHOLDERS, PARTICIPANTS AND "CONTROLLING PERSONS" (WITHIN THE
MEANING OF THE FEDERAL SECURITIES LAWS), AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS AND EACH AND ALL OF THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ATTORNEYS, ADVISORS, AUDITORS, CONSULTANTS AND OTHER REPRESENTATIVES OF EACH OF
THE FOREGOING (COLLECTIVELY, THE "RELEASEES"), BASED IN WHOLE OR IN PART ON
FACTS WHETHER OR NOT NOW KNOWN, EXISTING ON OR BEFORE THE FORBEARANCE EFFECTIVE
DATE, THAT RELATE TO, ARISE OUT OF OR OTHERWISE ARE IN CONNECTION WITH (I) ANY
ASPECT OF THE BUSINESS, OPERATIONS, ASSETS, PROPERTIES, AFFAIRS OR ANY OTHER
ASPECT OF ANY OF THE COMPANY OR THE SUBSIDIARIES, (II) ANY ASPECT OF THE
DEALINGS OR RELATIONSHIPS BETWEEN OR AMONG THE COMPANY, THE SUBSIDIARIES AND
THEIR RESPECTIVE AFFILIATES, ON THE ONE HAND, AND THE LENDER, ON THE OTHER HAND,
OR (III) ANY OR ALL OF THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY
TRANSACTIONS CONTEMPLATED THEREBY OR ANY ACTS OR OMISSIONS IN CONNECTION
THEREWITH; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT RELEASE THE LENDER
FROM ITS EXPRESS OBLIGATIONS UNDER THIS AGREEMENT, THE LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
THE RECEIPT BY THE COMPANY