THE INDENTURE, THE
INTERCREDITOR AGREEMENT AND THE COLLATERAL AGREEMENTS. IN ENTERING INTO THIS
SIXTH AMENDED FORBEARANCE AGREEMENT, THE COMPANY AND THE SUBSIDIARIES CONSULTED
WITH, AND HAVE BEEN REPRESENTED BY, LEGAL COUNSEL AND EXPRESSLY DISCLAIM ANY
RELIANCE ON ANY REPRESENTATIONS, ACTS OR OMISSIONS BY ANY OF THE RELEASEES AND
THE COMPANY AND THE SUBSIDIARIES HEREBY AGREE AND ACKNOWLEDGE THAT THE VALIDITY
AND EFFECTIVENESS OF THE RELEASES SET FORTH HEREIN DO NOT DEPEND IN ANY WAY ON
ANY SUCH REPRESENTATIONS, ACTS AND/OR OMISSIONS OR THE ACCURACY, COMPLETENESS OR
VALIDITY HEREOF. THE PROVISIONS OF THIS SECTION 4 SHALL SURVIVE THE EXPIRATION
OF THE SIXTH FORBEARANCE PERIOD AND THE TERMINATION OF THIS SIXTH AMENDED
FORBEARANCE AGREEMENT AND PAYMENT IN FULL OF THE OBLIGATIONS.
5.
RATIFICATION OF LIABILITY. THE COMPANY AND THE SUBSIDIARIES EACH
HEREBY RATIFIES AND REAFFIRMS ALL OF ITS OBLIGATIONS AND ITS GRANT OF LIENS ON
OR SECURITY INTERESTS IN ITS PROPERTIES PURSUANT TO THE COLLATERAL AGREEMENTS TO
WHICH IT IS PARTY AS
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SECURITY FOR THE OBLIGATIONS, AND CONFIRMS AND AGREES THAT SUCH LIENS AND
SECURITY INTERESTS HEREAFTER SECURE ALL THE OBLIGATIONS.
6.
COMPLETE INTEGRATION; AMENDMENTS. THIS SIXTH AMENDED FORBEARANCE
AGREEMENT CONSTITUTES THE FULL AND FINAL AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND THIS SIXTH AMENDED FORBEARANCE
AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT BY A WRITTEN INSTRUMENT, SIGNED
BY EACH OF THE PARTIES, EXPRESSING SUCH AMENDMENT OR MODIFICATION. THE PARTIES
WARRANT, PROMISE AND REPRESENT THAT IN EXECUTING THIS SIXTH AMENDED FORBEARANCE
AGREEMENT, EACH PARTY IS NOT RELYING UPON ANY ORAL REPRESENTATION, PROMISE OR
STATEMENT MADE BY ANY OTHER PARTY HERETO AND THAT EACH PARTY IS NOT RELYING UPON
ANY PROMISE, STATEMENT OR REPRESENTATION CONTAINED IN ANY OTHER WRITTEN
INSTRUMENT.
7.
NO OTHER AMENDMENTS; RESERVATION OF RIGHTS, NO WAIVER. OTHER THAN
AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS SIXTH AMENDED FORBEARANCE AGREEMENT
SHALL NOT BE DEEMED TO OPERATE AS AN AMENDMENT OR WAIVER OF, OR TO PREJUDICE,
ANY RIGHT, POWER, PRIVILEGE OR REMEDY OF THE NOTEHOLDERS OR THE INDENTURE
TRUSTEE, AS APPLICABLE, UNDER THE INDENTURE, THE INTERCREDITOR AGREEMENT, THE
COLLATERAL AGREEMENTS OR APPLICABLE LAW, NOR SHALL THE ENTERING INTO THIS SIXTH
AMENDED FORBEARANCE AGREEMENT PRECLUDE THE NOTEHOLDERS FROM REFUSING TO ENTER
INTO ANY FURTHER AMENDMENTS OR FORBEARANCES WITH RESPECT TO THE INDENTURE. OTHER
THAN AS EXPRESSLY PROVIDED HEREIN, THIS SIXTH AMENDED FORBEARANCE AGREEMENT
SHALL NOT CONSTITUTE A FORBEARANCE WITH RESPECT TO (I) ANY FAILURE BY THE
COMPANY TO COMPLY WITH ANY COVENANT OR OTHER PROVISION IN THE INDENTURE OR
(II) THE OCCURRENCE OR CONTINUANCE OF ANY PRESENT OR FUTURE EVENT OF DEFAULT.
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8.
NO IMPAIRMENT OF LENDER'S RIGHTS. THE NOTEHOLDER GROUP, THE
COMPANY AND THE SUBSIDIARIES ACKNOWLEDGE AND AGREE THAT NOTHING CONTAINED IN
THIS SIXTH AMENDED FORBEARANCE AGREEMENT NOR THE EXECUTION OF THIS SIXTH AMENDED
FORBEARANCE AGREEMENT BY DDJ SHALL IMPAIR IN ANY WAY NOR SHALL BE DEEMED TO
IMPAIR IN ANY WAY ANY RIGHTS OF LENDER OR ANY AFFILIATES OF LENDER ARISING UNDER
OR RELATED TO THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS