AGREEMENT) UNDER THE LOAN AGREEMENT THAT IS NOT A SPECIFIED DEFAULT (AS
DEFINED IN THE DDJ SECOND 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 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 SECOND AMENDED FORBEARANCE
AGREEMENT AND THE SECOND AMENDED FORBEARANCE EFFECTIVE DATE.
4.
GENERAL RELEASE.
IN CONSIDERATION OF, AMONG OTHER THINGS, THE
NOTEHOLDERS' EXECUTION AND DELIVERY OF THIS SECOND 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
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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 "RELEASEES"),
BASED IN WHOLE OR IN PART ON FACTS WHETHER OR NOT NOW KNOWN, EXISTING ON OR
BEFORE THE SECOND AMENDED FORBEARANCE EFFECTIVE DATE, THAT RELATE TO, ARISE OUT
OF 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 SECOND AMENDED FORBEARANCE AGREEMENT, THE INDENTURE, THE INTERCREDITOR
AGREEMENT AND THE COLLATERAL AGREEMENTS.
IN
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ENTERING INTO THIS SECOND AMENDED FORBEARANCE AGREEMENT, THE COMPANY AND THE
SUBSIDIARIES CONSULTED WITH, AND HAVE BEEN REPRESENTED BY, LEGAL COUNSEL AND
EXPRESSLY DISCLAIM ANY RELIANCE ON ANY REPRESENTATIONS, ACTS OR OMISSIONS BY ANY
OF THE RELEASEES AND THE COMPANY AND THE SUBSIDIARIES HEREBY AGREE AND
ACKNOWLEDGE THAT THE VALIDITY AND EFFECTIVENESS