forbearance periods set forth in the DDJ Second Amended
Forbearance Agreement (the "DDJ Second Amended Forbearance Period")
WHEREAS, the Company and the Subsidiaries have advised the Noteholders that the
Company, the Subsidiaries and Lender will, simultaneously with the execution of
this Third Amended Forbearance Agreement, amend and restate the DDJ Second
Amended Forbearance Agreement, pursuant to which Lender shall agree to extend
the DDJ Second Amended Forbearance Period and continue to forbear from
exercising the rights and remedies available to Lender under the Loan Agreement
and the other Loan Documents (as defined in the Loan Agreement), all on the
terms and conditions set forth in such separate amended forbearance agreement
through and including October 29, 2007 (as such agreement may be amended,
modified, supplemented or amended and restated from time to time, the "DDJ Third
Amended Forbearance Agreement");
WHEREAS, at the Company's request, the Noteholders have agreed to continue
forbearing from exercising, and continue to instruct the Indenture Trustee not
to exercise, those of the rights and remedies available under the Indenture, the
Intercreditor Agreement, the Collateral Agreements and/or applicable law that
have or may have
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arisen, or may hereafter arise, due to the occurrence and continuance of the
Specified Existing Defaults on the terms and conditions set forth herein; and
WHEREAS, capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Indenture and the Second Amended Forbearance Agreement.
NOW THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth in this Third Amended Forbearance Agreement, the Parties,
each intending to be legally bound, agree that the Second Amended Forbearance
Agreement is amended and restated in its entirety as follows:
1.
FORBEARANCE.
(A)
EFFECTIVE AS OF THE THIRD AMENDED FORBEARANCE EFFECTIVE DATE (AS
DEFINED BELOW), THE NOTEHOLDERS AGREE THAT, UNTIL THE EXPIRATION OF THE THIRD
FORBEARANCE PERIOD (AS DEFINED BELOW), THEY WILL FORBEAR FROM EXERCISING, AND
SHALL DIRECT THE INDENTURE TRUSTEE,
AND BY SIGNATURE HERETO SO DIRECT THE
INDENTURE TRUSTEE PURSUANT TO SECTION 6.5 OF THE INDENTURE, NOT TO EXERCISE, ANY
RIGHTS AND REMEDIES AGAINST THE COMPANY OR THE SUBSIDIARIES THAT ARE AVAILABLE
UNDER THE INDENTURE, THE INTERCREDITOR AGREEMENT, THE COLLATERAL AGREEMENTS
AND/OR APPLICABLE LAW SOLELY WITH RESPECT TO THE SPECIFIED EXISTING DEFAULTS
(EXCLUDING, HOWEVER, THE NOTEHOLDERS' RIGHT TO CHARGE DEFAULT INTEREST ON THE
NOTES (INCLUDING ON ALL UNPAID INTEREST ON THE NOTES TO THE EXTENT PROVIDED
UNDER THE INDENTURE) DURING THE THIRD FORBEARANCE PERIOD); PROVIDED, HOWEVER,
THAT NOTHING HEREIN SHALL RESTRICT, IMPAIR OR OTHERWISE AFFECT THE EXERCISE OF
THE NOTEHOLDERS'
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RIGHTS UNDER THIS THIRD AMENDED FORBEARANCE AGREEMENT, AND PROVIDED FURTHER THAT
NO SUCH FORBEARANCE SHALL CONSTITUTE A WAIVER WITH RESPECT TO ANY SUCH SPECIFIED
EXISTING DEFAULTS OR ANY OTHER EVENTS OF DEFAULT UNDER THE INDENTURE.
(B)
AS USED HEREIN, THE TERM "THIRD FORBEARANCE PERIOD" SHALL MEAN THE
PERIOD BEGINNING ON THE DATE HEREOF AND ENDING UPON THE OCCURRENCE OF A
TERMINATION EVENT. AS USED HEREIN, "TERMINATION EVENT" SHALL MEAN THE EARLIER TO
OCCUR OF (I)