TRUSTEE, AS APPLICABLE, MAY,
UPON SUCH NOTICE OR DEMAND AS IS SPECIFIED BY THE INDENTURE, THE INTERCREDITOR
AGREEMENT, THE COLLATERAL AGREEMENTS OR
8
APPLICABLE LAW (X) COLLECT AND/OR COMMENCE ANY LEGAL OR OTHER ACTION TO COLLECT
ANY OR ALL OF THE COMPANY'S OR THE SUBSIDIARIES' OBLIGATIONS UNDER THE INDENTURE
OR THE GUARANTEES (COLLECTIVELY, THE "OBLIGATIONS"); (Y) FORECLOSE OR OTHERWISE
REALIZE ON ANY OR ALL OF THE COLLATERAL, AND/OR APPROPRIATE, SETOFF OR APPLY TO
THE PAYMENT OF ANY OR ALL OF THE OBLIGATIONS, ANY OR ALL OF THE COLLATERAL OR
PROCEEDS THEREOF; AND (Z) TAKE ANY OTHER ENFORCEMENT ACTION OR OTHERWISE
EXERCISE ANY OR ALL RIGHTS AND REMEDIES PROVIDED FOR UNDER THE INDENTURE, THE
INTERCREDITOR AGREEMENT, THE COLLATERAL AGREEMENTS AND/OR APPLICABLE LAW, ALL OF
WHICH RIGHTS AND REMEDIES ARE FULLY RESERVED.
(D)
ANY AGREEMENT BY THE NOTEHOLDERS TO FURTHER EXTEND THE FORBEARANCE
PERIOD OR TO ENTER INTO ANY OTHER FORBEARANCE OR SIMILAR ARRANGEMENT MUST BE SET
FORTH IN WRITING AND SIGNED BY ALL OF THE NOTEHOLDERS.
THE COMPANY AND THE
SUBSIDIARIES ACKNOWLEDGE THAT THE NOTEHOLDERS HAVE MADE NO ASSURANCES WHATSOEVER
CONCERNING ANY POSSIBILITY OF ANY EXTENSION OF THE FORBEARANCE PERIOD, ANY OTHER
FORBEARANCE OR SIMILAR ARRANGEMENT OR ANY OTHER LIMITATIONS ON THE EXERCISE OF
THEIR RIGHTS, REMEDIES AND PRIVILEGES UNDER OR OTHERWISE IN CONNECTION WITH THE
INDENTURE, THE INTERCREDITOR AGREEMENT, THE COLLATERAL AGREEMENTS AND/OR
APPLICABLE LAW.
(E)
THE COMPANY AND THE SUBSIDIARIES ACKNOWLEDGE AND AGREE THAT ANY
FORBEARANCE, WAIVER OR CONSENT WHICH THE NOTEHOLDERS MAY MAKE ON OR AFTER THE
DATE HEREOF HAS BEEN MADE BY THE NOTEHOLDERS IN RELIANCE UPON, AND IN
CONSIDERATION FOR, AMONG OTHER THINGS, THE GENERAL RELEASES CONTAINED IN SECTION
4 HEREOF AND THE OTHER COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE SUBSIDIARIES HEREUNDER.
9
2.
EFFECTIVENESS.
THIS FIRST AMENDED FORBEARANCE AGREEMENT SHALL
BECOME EFFECTIVE ON THE FIRST DATE (THE "AMENDED FORBEARANCE EFFECTIVE DATE") ON
WHICH EACH OF THE FOLLOWING CONDITIONS IS SATISFIED AND EVIDENCE OF ITS
SATISFACTION HAS BEEN DELIVERED TO COUNSEL TO THE NOTEHOLDER GROUP:
(A)
EXECUTION AND DELIVERY BY THE COMPANY AND THE SUBSIDIARIES OF THE
DDJ AMENDED FORBEARANCE AGREEMENT HAVING A FORBEARANCE PERIOD THAT (SUBJECT TO
EARLIER TERMINATION UPON THE OCCURRENCE AND CONTINUATION OF A FORBEARANCE
DEFAULT AS DEFINED THEREIN) IS THROUGH AND INCLUDING A DATE THAT IS NO EARLIER
THAN SEPTEMBER 12, 2007, AND IS OTHERWISE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE NOTEHOLDER GROUP; AND
(B)
EXECUTION AND DELIVERY OF COUNTERPARTS OF THIS FIRST AMENDED
FORBEARANCE AGREEMENT BY THE NOTEHOLDERS, THE INDENTURE TRUSTEE, THE COMPANY AND
THE SUBSIDIARIES.
3.
REPRESENTATIONS, WARRANTIES AND COVENANTS.
(A)
THE COMPANY AND THE SUBSIDIARIES REPRESENT, WARRANT AND COVENANT
AS FOLLOWS:
(I)
EXCEPT FOR THE SPECIFIED EXISTING DEFAULTS IN THIS FIRST AMENDED
FORBEARANCE AGREEMENT, THE COMPANY IS IN COMPLIANCE WITH ALL OF THE TERMS AND
PROVISIONS SET FORTH IN THE INDENTURE ON ITS PART TO BE OBSERVED OR PERFORMED,
AND NO OTHER EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING.
(II)
THE EXECUTION, DELIVERY AND PERFORMANCE BY THE COMPANY AND THE