AGREEMENT NOR THE EXECUTION OF THIS AGREEMENT BY DDJ SHALL IMPAIR IN ANY
WAY NOR SHALL BE DEEMED TO IMPAIR IN ANY WAY ANY RIGHTS OF LENDER OR ANY
AFFILIATES OF LENDER ARISING UNDER OR RELATED TO THE LOAN AGREEMENT, THE OTHER
LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT), THE DDJ FORBEARANCE
AGREEMENT, THE INTERCREDITOR AGREEMENT OR OTHERWISE.
ALL RIGHTS OF LENDER OR
ANY AFFILIATE OF LENDER ARISING UNDER OR RELATED TO THE LOAN AGREEMENT, THE
OTHER LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT), THE
13
DDJ FORBEARANCE AGREEMENT, THE INTERCREDITOR AGREEMENT OR OTHERWISE ARE
EXPRESSLY RESERVED.
9.
COUNTERPARTS/FACSIMILE TRANSMISSION.
THIS AGREEMENT MAY BE
SIGNED IN COUNTERPARTS, EACH OF WHICH, WHEN TAKEN TOGETHER, SHALL BE DEEMED AN
ORIGINAL.
EXECUTION OF THIS AGREEMENT IS EFFECTIVE IF A SIGNATURE IS DELIVERED
BY FACSIMILE TRANSMISSION.
10.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES HERETO AND EACH OF THEIR RESPECTIVE
SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES.
11.
AUTHORITY.
ANY PERSON SIGNING THIS AGREEMENT IN A REPRESENTATIVE
CAPACITY (I) REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED TO SIGN THIS
AGREEMENT ON BEHALF OF THE PARTY HE/SHE REPRESENTS AND THAT HIS/HER SIGNATURE
UPON THIS AGREEMENT WILL BIND THE REPRESENTED PARTY TO THE TERMS OF THIS
AGREEMENT, AND (II) ACKNOWLEDGES THAT THE OTHER PARTY TO THIS AGREEMENT HAS
RELIED UPON SUCH REPRESENTATION AND WARRANTY.
12.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CHOICE OF LAW PROVISIONS.
13.
REMEDIES.
ALL PARTIES HERETO AGREE THAT IRREPARABLE DAMAGE WOULD
RESULT FROM ANY PARTY'S BREACH OF THIS AGREEMENT, AND FURTHER AGREE THAT A
NON-BREACHING PARTY WOULD HAVE NO ADEQUATE REMEDY AT LAW TO REDRESS SUCH
BREACH.
THEREFORE, THE PARTIES HERETO AGREE THAT, IN THE EVENT OF A BREACH OF
THIS AGREEMENT, SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF IS APPROPRIATE TO
REMEDY SUCH BREACH.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED IN THIS
SECTION 13 SHALL BE DEEMED A WAIVER BY ANY NON-
14
BREACHING PARTY HERETO OF ANY OTHER REMEDIES AVAILABLE AT LAW TO REDRESS ANY
OTHER PARTY'S BREACH OF THIS AGREEMENT.
EACH OF THE RIGHTS AND POWERS PROVIDED
PURSUANT TO THIS AGREEMENT SHALL BE CUMULATIVE AND IN ADDITION TO AND NOT IN
DEROGATION OF THE RIGHTS AND POWERS OTHERWISE AVAILABLE UNDER APPLICABLE LAW TO
THE PARTIES.
14.
DIRECTION TO INDENTURE TRUSTEE.
THE NOTEHOLDERS' AGREEMENT TO
FORBEAR AS PROVIDED HEREIN SHALL CONSTITUTE A DIRECTION FROM SUCH NOTEHOLDERS TO
THE INDENTURE TRUSTEE TO SIMILARLY FORBEAR DURING THE FORBEARANCE PERIOD.
IN
ORDER TO INDUCE THE INDENTURE TRUSTEE TO ACCEPT SUCH DIRECTION, THE COMPANY AND
THE SUBSIDIARIES AGREE (A) THAT THE INDENTURE TRUSTEE, AS AN EX OFFICIO
PARTICIPANT OF THE NOTEHOLDER GROUP, MAY RECEIVE THE COPIES OF ALL INFORMATION
AND PARTICIPATE IN THE NEGOTIATIONS REFERENCED IN SUBSECTIONS (A) AND (B) OF THE
DEFINITION OF FORBEARANCE DEFAULT IN SECTION 1(B) HEREOF, AND (B) TO PAY, IN
ACCORDANCE WITH THE TERMS OF THE INDENTURE, THE REASONABLE FEES