PAYMENTS
EITHER DIRECTLY, OR INDIRECTLY THROUGH TWC HOLDING LLC, TO THE VERITAS CAPITAL
FUND II, L.P. AND ITS GENERAL PARTNER, VERITAS CAPITAL MANAGEMENT II, L.L.C.
(IV)
WITHIN FIVE (5) BUSINESS DAYS AFTER THE THIRD AMENDED FORBEARANCE
EFFECTIVE DATE, THE COMPANY SHALL FILE THIS THIRD AMENDED FORBEARANCE AGREEMENT
AND THE DDJ THIRD AMENDED 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 NOTEHOLDERS.
(V)
THE COMPANY AND THE SUBSIDIARIES SHALL IMMEDIATELY NOTIFY THE
NOTEHOLDERS AND THE INDENTURE TRUSTEE UPON ITS OR THEIR BECOMING AWARE OF AN
EVENT OF DEFAULT UNDER THE INDENTURE OR AN EVENT OF DEFAULT (AS DEFINED IN THE
LOAN AGREEMENT) UNDER THE LOAN AGREEMENT THAT IS NOT A SPECIFIED DEFAULT (AS
DEFINED IN THE DDJ THIRD AMENDED FORBEARANCE AGREEMENT).
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(B)
THE INDENTURE TRUSTEE REPRESENTS AS FOLLOWS:
(I)
BASED SOLELY ON THE REPRESENTATIONS PROVIDED BY COUNSEL TO THE
NOTEHOLDER GROUP AND DDJ, THE INDENTURE TRUSTEE REPRESENTS THAT, AS OF THE DATE
HEREOF, THE NOTEHOLDERS, IN THE AGGREGATE, HOLD NOT LESS THAN $100 MILLION IN
PRINCIPAL AMOUNT OF THE NOTES, REPRESENTING NOT LESS THAN 80% OF THE AGGREGATE
PRINCIPAL AMOUNT OF THE NOTES OUTSTANDING.
(C)
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 3
SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS THIRD AMENDED FORBEARANCE
AGREEMENT AND THE THIRD AMENDED FORBEARANCE EFFECTIVE DATE.
4.
GENERAL RELEASE. IN CONSIDERATION OF, AMONG OTHER THINGS, THE
NOTEHOLDERS' EXECUTION AND DELIVERY OF THIS THIRD AMENDED FORBEARANCE AGREEMENT,
THE COMPANY AND THE SUBSIDIARIES, ON BEHALF OF THEMSELVES AND THEIR SUCCESSORS
AND ASSIGNS (COLLECTIVELY, THE "RELEASORS"), HEREBY FOREVER AGREE AND COVENANT
NOT TO SUE OR PROSECUTE AGAINST THE RELEASEES (AS DEFINED BELOW) AND HEREBY
FOREVER WAIVE, RELEASE AND DISCHARGE 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 NOTEHOLDERS IN ANY CAPACITY AND THEIR
AFFILIATES, SHAREHOLDERS AND "CONTROLLING PERSONS" (WITHIN THE MEANING OF THE
FEDERAL SECURITIES LAW), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND
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EACH AND ALL OF THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, ADVISORS,
AUDITORS, CONSULTANTS AND OTHER REPRESENTATIVE 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 THIRD AMENDED FORBEARANCE EFFECTIVE
DATE, THAT RELATE TO, ARISE OUT OF OR OTHERWISE ARE IN CONNECTION WITH (I) ANY