THAT CERTAIN SENIOR SECURED SUPERPRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT IS EXPECTED TO BE ENTERED INTO IN
CONNECTION WITH THE BANKRUPTCY FILINGS (AS AMENDED, SUPPLEMENTED OR OTHERWISE
MODIFIED FROM TIME TO TIME, INCLUDING ANY SUBSTITUTION, REPLACEMENT,
REFINANCING, RENEWAL OR EXTENSION THEREOF, THE "DIP CREDIT AGREEMENT") BY THE
U.S. BORROWER AS BORROWER AND THE SUBSIDIARY GUARANTORS AS GUARANTORS, DEUTSCHE
BANK TRUST COMPANY AMERICAS, AS DIP ADMINISTRATIVE AGENT AND DIP COLLATERAL
AGENT, DEUTSCHE BANK TRUST COMPANY AMERICAS, AS DIP ISSUING BANK AND DIP
SWINGLINE BANK, DEUTSCHE BANK SECURITIES INC. AS LEAD ARRANGER, GENERAL ELECTRIC
CAPITAL CORPORATION AS SYNDICATION AGENT, AND THE DIP LENDERS FROM TIME TO TIME
PARTY THERETO;
(M)
WHEREAS, THE LOAN PARTIES HAVE NOTIFIED THE LENDERS THAT THE
SPECIFIED EVENTS OF DEFAULTS HAVE OCCURRED AND ARE EXISTING ON THE DATE HEREOF;
(N)
WHEREAS, NOTWITHSTANDING THE SPECIFIED EVENTS OF DEFAULT, THE LOAN
PARTIES HAVE REQUESTED, AND THOSE CERTAIN SENIOR LENDERS UNDER THE SENIOR
PREPETITION CREDIT AGREEMENT PARTY TO THIS AGREEMENT, INCLUDING BY WAY OF
JOINDER HERETO (COLLECTIVELY, TOGETHER WITH THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, THE "SPECIFIED SENIOR LENDERS") ARE WILLING, THROUGH THE FORBEARANCE
TERMINATION DATE (AS DEFINED BELOW) WITH RESPECT TO EACH SPECIFIED SENIOR
LENDER, TO FORBEAR IN THE ENFORCEMENT OF THEIR REMEDIES SET FORTH IN THE
PREPETITION LOAN DOCUMENTS AVAILABLE TO IT AT LAW OR IN EQUITY, SUCH FORBEARANCE
TO OCCUR TO THE EXTENT, AND STRICTLY ON THE TERMS AND CONDITIONS, SET FORTH
HEREIN.
NOW, THEREFORE, in consideration of the premises, the mutual covenants contained
herein and for other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Loan Parties and the Specified Senior Lenders
hereby agree as follows:
ARTICLE I
DEFINITIONS; ACKNOWLEDGMENTS
Section 1.1.
Definitions.
As used in this Agreement, the following terms shall
have the meanings set forth below:
"Canadian Borrower Forbearance Condition" means, on any date, a condition that
will be satisfied if the Canadian Borrower has complied with each of the
following covenants set forth in the Senior Prepetition Credit Agreement (as
modified below), with such provisions to be interpreted as if the Canadian
Borrower is the only "Borrower" and the only "Restricted Subsidiary" thereunder:
(a)
Liens, Etc.
The covenants set forth in 5.02(a); provided no Liens in
excess of $500,000 may be created, incurred, assumed or suffered to exist after
the Effective Date under Section 5.2(a)(x).
3
(b)
Debt - The covenants set forth in Section 5.02(b); provided that
(x) no other Subordinated Debt may be incurred after the Effective Date under
Section 5.02(b)(i)(A), (y) no Debt other than unsecured Debt may be incurred
after the Effective Date under Section 5.02(b)(iii)(I) and (z) the following
U.S. Dollar values shall be adjusted with respect to any Debt to be incurred
after the Effective Date:
i.
in Section 5.02(b)(iii)(B), $25,000,000 shall be reduced to
$500,000;
ii.
in Section 5.02(b)(iii)(D), $50,000,000 shall be reduced to $0; and
iii.
in Section 5.02(b)(iii)(I), $125,000,000 shall be reduced to
$500,000.
(c)
Asset Sales - The covenants set forth in Section 5.02(d); provided
that no asset sales may be made