Forbearance Agreement") pursuant
to which the Forbearance Period was further extended through September 16, 2007.
On September 12 2007, the Company and the Subsidiaries entered into a Second
Amended and Restated Forbearance Agreement with the Noteholders (the "Second
Amended Noteholder Forbearance Agreement") pursuant to which the Forbearance
Period (as defined in the Second Amended Noteholder Forbearance Agreement) was
extended through October 16, 2007. On October 15, 2007, the Company and the
Subsidiaries entered into a Third Amended and Restated Forbearance Agreement
with the Noteholders (the "Third Amended Noteholder Forbearance Agreement")
pursuant to which the Forbearance Period (as defined in the Third Amended
Noteholder Forbearance Agreement) was extended through October 31, 2007.
I.
The Company and the Subsidiaries have
advised the Lender that the Company, the Subsidiaries and the Noteholders will,
simultaneously with the execution of this Fourth Amended Forbearance Agreement,
amend and restate the Third Amended Noteholder Forbearance Agreement pursuant to
which the Noteholders shall agree to forbear from exercising the rights and
remedies available to the Noteholders under the Indenture, the Intercreditor
Agreement and the Collateral Agreements (as defined in the Indenture) until
December 6, 2007, all on the terms and conditions set forth in such amended and
restated forbearance agreement (as such agreement may be amended, modified,
supplemented or amended and restated from time to time, the "Fourth Amended
Noteholder Forbearance Agreement").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements set forth in this Fourth
Amended Forbearance Agreement, and intending to be legally bound, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1
DEFINED TERMS.
(A)
CAPITALIZED TERMS THAT ARE DEFINED IN THIS
FOURTH AMENDED FORBEARANCE AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO SUCH
TERMS IN THIS FOURTH AMENDED FORBEARANCE AGREEMENT. ALL OTHER CAPITALIZED TERMS
SHALL HAVE THE MEANINGS ASCRIBED IN THE LOAN AGREEMENT. UNLESS THE CONTEXT OF
THIS FOURTH AMENDED FORBEARANCE AGREEMENT CLEARLY REQUIRES OTHERWISE, REFERENCES
TO THE PLURAL INCLUDE THE SINGULAR; REFERENCES TO THE SINGULAR INCLUDE THE
PLURAL; THE WORDS "INCLUDE," "INCLUDES," AND "INCLUDING" WILL BE DEEMED TO BE
FOLLOWED BY "WITHOUT LIMITATION"; AND THE TERM "OR" HAS, EXCEPT WHERE OTHERWISE
INDICATED, THE INCLUSIVE MEANING REPRESENTED BY THE PHRASE "AND/OR".
(B)
THIS FOURTH AMENDED FORBEARANCE AGREEMENT
CONSTITUTES A "LOAN DOCUMENT" AS DEFINED IN THE LOAN AGREEMENT.
(C)
REFERENCES IN THIS FOURTH AMENDED
FORBEARANCE AGREEMENT TO THE LENDER SHALL CONSTITUTE REFERENCES TO DDJ TOTAL
RETURN LOAN FUND, L.P. SOLELY IN ITS CAPACITY AS THE LENDER.
2
ARTICLE II
FORBEARANCE AND AMENDMENT TO LOAN AGREEMENT
2.1
FORBEARANCE; FORBEARANCE DEFAULT RIGHTS AND
REMEDIES.
(A)
EFFECTIVE AS OF THE FOURTH AMENDED
FORBEARANCE EFFECTIVE DATE (AS DEFINED BELOW), THE LENDER AGREES THAT UNTIL THE
EXPIRATION OF THE "FORBEARANCE PERIOD" (AS DEFINED BELOW), IT WILL FORBEAR FROM
EXERCISING ITS RIGHTS AND REMEDIES AGAINST THE COMPANY OR THE SUBSIDIARIES UNDER
THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS AND/OR APPLICABLE LAW SOLELY WITH
RESPECT TO THE SPECIFIED DEFAULTS AND ANY EVENT OF DEFAULT RESULTING SOLELY FROM
THE COMPANY'S FAILURE TO MAKE THE SCHEDULED INTEREST PAYMENT