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 AGREEMENT SHALL BECOME EFFECTIVE ON THE
FIRST DATE (THE "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 FORBEARANCE AGREEMENT HAVING A FORBEARANCE PERIOD THAT (SUBJECT TO EARLIER
TERMINATION UPON THE OCCURRENCE AND CONTINUATION OF A FORBEARANCE
8
DEFAULT AS DEFINED THEREIN) IS THROUGH AND INCLUDING A DATE THAT IS NO EARLIER
THAN AUGUST 13, 2007, AND IS OTHERWISE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE NOTEHOLDER GROUP;
(B)
EXECUTION AND DELIVERY BY THE COMPANY OF THAT CERTAIN LETTER,
DATED AS OF JUNE 25, 2007 (THE "CHANIN ENGAGEMENT LETTER"), EVIDENCING THE
COMPANY'S AGREEMENT TO THE NOTEHOLDER GROUP'S RETENTION OF CHANIN CAPITAL
PARTNERS L.L.C. ("CHANIN"), AS ITS FINANCIAL ADVISOR, AND TO THE COMPANY'S
PAYMENT OF CHANIN'S FEES, EXPENSES AND INDEMNITY, AS PROVIDED THEREIN; AND
(C)
EXECUTION AND DELIVERY OF COUNTERPARTS OF THIS 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 OR AS OTHERWISE
EXPRESSLY PROVIDED HEREIN, 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 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
9
AUTHORITY OR ARBITRATOR APPLICABLE TO THEM, (C) CONFLICT WITH OR RESULT IN THE
BREACH OF, OR CONSTITUTE A DEFAULT UNDER, OR RESULT IN OR PERMIT THE TERMINATION
OR ACCELERATION OF, ANY CONTRACTUAL OBLIGATION OF THE COMPANY OR THE
SUBSIDIARIES, OR (D) RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN OR
ENCUMBRANCE UPON ANY OF THE PROPERTY OF THE COMPANY OR THE SUBSIDIARIES; AND
(4)
DO NOT AND WILL NOT REQUIRE THE CONSENT OF, AUTHORIZATION BY,
APPROVAL OF, NOTICE TO, OR FILING OR REGISTRATION WITH, ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER ENTITY, OTHER THAN THOSE WHICH PRIOR TO THE FORBEARANCE
EFFECTIVE DATE WILL HAVE BEEN OBTAINED OR MADE AND COPIES OF WHICH PRIOR TO THE
FORBEARANCE EFFECTIVE DATE WILL HAVE BEEN DELIVERED TO COUNSEL TO THE NOTEHOLDER
GROUP AND DDJ AND EACH OF WHICH ON THE FORBEARANCE EFFECTIVE DATE WILL BE