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 SIXTH AMENDED FORBEARANCE AGREEMENT).
(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
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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 SIXTH
AMENDED FORBEARANCE AGREEMENT AND THE SIXTH AMENDED FORBEARANCE EFFECTIVE DATE.
4.
GENERAL RELEASE.
IN CONSIDERATION OF,
AMONG OTHER THINGS, THE NOTEHOLDERS' EXECUTION AND DELIVERY OF THIS SIXTH
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 EACH AND ALL OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS, ADVISORS, AUDITORS, CONSULTANTS AND OTHER
REPRESENTATIVE OF EACH OF THE FOREGOING (COLLECTIVELY, THE
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"RELEASEES"), BASED IN WHOLE OR IN PART ON FACTS WHETHER OR NOT NOW KNOWN,
EXISTING ON OR BEFORE THE SIXTH AMENDED 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 THE
COMPANY OR THE SUBSIDIARIES; (II) ANY ASPECT OF THE DEALINGS OR RELATIONSHIPS
BETWEEN OR AMONG THE COMPANY AND THE SUBSIDIARIES, ON THE ONE HAND, AND THE
NOTEHOLDERS, ON THE OTHER HAND, OR (III) THE INDENTURE OR ANY TRANSACTIONS
CONTEMPLATED THEREBY OR ANY ACTS OR OMISSIONS IN CONNECTION THEREWITH, PROVIDED,
HOWEVER, THAT THE FOREGOING SHALL NOT RELEASE THE NOTEHOLDERS FROM THEIR EXPRESS
OBLIGATIONS UNDER THIS SIXTH AMENDED FORBEARANCE AGREEMENT,