INTEREST PAYMENTS DUE
UNDER THE NOTES ON JULY 15, 2007 AND JANUARY 15, 2008 OR (II) THE OCCURRENCE OF
A FORBEARANCE DEFAULT (AS DEFINED IN THE SIXTH AMENDED NOTEHOLDER FORBEARANCE
AGREEMENT).
3.2
SURVIVAL.
THE REPRESENTATIONS AND WARRANTIES IN SECTION 3.1 SHALL
SURVIVE THE EXECUTION AND DELIVERY OF THIS SIXTH AMENDED FORBEARANCE AGREEMENT
AND THE SIXTH AMENDED FORBEARANCE EFFECTIVE DATE.
ARTICLE IV
GENERAL RELEASE; REAFFIRMATION OF INDEMNITY
(A)
IN CONSIDERATION OF, AMONG OTHER THINGS, THE LENDER'S EXECUTION
AND DELIVERY OF THIS SIXTH AMENDED FORBEARANCE AGREEMENT, EACH OF THE COMPANY
AND THE
7
SUBSIDIARIES, ON BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY,
"RELEASORS"), HEREBY FOREVER AGREES AND COVENANTS NOT TO SUE OR PROSECUTE
AGAINST ANY RELEASEE (AS DEFINED BELOW) AND HEREBY FOREVER WAIVES, RELEASES AND
DISCHARGES 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 LENDER IN ANY CAPACITY AND ITS AFFILIATES, SHAREHOLDERS,
PARTICIPANTS AND "CONTROLLING PERSONS" (WITHIN THE MEANING OF THE FEDERAL
SECURITIES LAWS), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS AND EACH AND ALL
OF THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, ADVISORS, AUDITORS,
CONSULTANTS AND OTHER REPRESENTATIVES 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 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 ANY OF
THE COMPANY OR THE SUBSIDIARIES, (II) ANY ASPECT OF THE DEALINGS OR
RELATIONSHIPS BETWEEN OR AMONG THE COMPANY, THE SUBSIDIARIES AND THEIR
RESPECTIVE AFFILIATES, ON THE ONE HAND, AND THE LENDER, ON THE OTHER HAND, OR
(III) ANY OR ALL OF THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY
TRANSACTIONS CONTEMPLATED THEREBY OR ANY ACTS OR OMISSIONS IN CONNECTION
THEREWITH; PROVIDED, HOWEVER, THAT THE FOREGOING SHALL NOT RELEASE THE LENDER
FROM ITS EXPRESS OBLIGATIONS UNDER THIS SIXTH AMENDED FORBEARANCE AGREEMENT, THE
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS.
THE RECEIPT BY THE COMPANY OF ANY
OF THE REVOLVING LOAN OR OTHER FINANCIAL ACCOMMODATIONS MADE BY THE LENDER ON OR
AFTER THE DATE HEREOF SHALL CONSTITUTE A RATIFICATION, ADOPTION, AND
CONFIRMATION BY THE COMPANY AND THE SUBSIDIARIES OF THE FOREGOING GENERAL
RELEASE OF ALL CLAIMS AGAINST THE RELEASEES WHICH ARE BASED IN WHOLE OR IN PART
ON FACTS, WHETHER OR NOT NOW KNOWN OR UNKNOWN, EXISTING ON OR PRIOR TO THE DATE
OF RECEIPT OF ANY OF THE REVOLVING LOAN OR OTHER FINANCIAL ACCOMMODATIONS.
IN
ENTERING