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.
10
(D)
ANY AGREEMENT BY THE NOTEHOLDERS TO FURTHER EXTEND THE FOURTH
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 FOURTH 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.
2.
EFFECTIVENESS. THIS FOURTH AMENDED FORBEARANCE AGREEMENT SHALL
BECOME EFFECTIVE ON THE FIRST DATE (THE "FOURTH 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 FOURTH 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
11
THAN DECEMBER 3, 2007, AND IS OTHERWISE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE NOTEHOLDER GROUP; AND
(B)
EXECUTION AND DELIVERY OF COUNTERPARTS OF THIS FOURTH 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 FOURTH 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
SUBSIDIARIES OF THIS FOURTH AMENDED FORBEARANCE AGREEMENT:
(1)
ARE WITHIN THEIR CORPORATE OR LIMITED PARTNERSHIP POWERS, AS
APPLICABLE;
(2)
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;
(3)
DO NOT AND WILL NOT (A) CONTRAVENE THEIR CERTIFICATE OF
INCORPORATION OR BY-LAWS OR LIMITED PARTNERSHIP OR OTHER CONSTITUENT DOCUMENTS,
(B) VIOLATE ANY APPLICABLE REQUIREMENT OF LAW OR ANY ORDER OR DECREE OF ANY
GOVERNMENTAL AUTHORITY OR ARBITRATOR APPLICABLE TO THEM, (C) CONFLICT WITH OR
RESULT