FOREGOING IDENTIFICATION OF SPECIFIC EVENTS OF DEFAULT DOES NOT
IMPLY THAT OTHER EVENTS OF DEFAULT DO NOT EXIST ON THE DATE HEREOF.
WHEREAS, THE BORROWERS AND GUARANTOR FURTHER ACKNOWLEDGE AND AGREE THAT BY
REASON OF THE OCCURRENCE OF THE EXISTING DEFAULTS, THE LENDERS ARE NOT REQUIRED
TO MAKE ANY FURTHER LOANS OR ADVANCES TO THE BORROWERS, AND THE AGENT AND THE
LENDERS HAVE THE RIGHT AT ANY TIME TO EXERCISE THEIR RIGHTS AND REMEDIES UNDER
THE CREDIT AGREEMENT AND RELATED LOAN DOCUMENTS.
WHEREAS, THE BORROWERS AND THE GUARANTOR HAVE REQUESTED, NOTWITHSTANDING THAT
THE EXISTING DEFAULTS REFERRED TO ABOVE EXIST UNDER THE CREDIT AGREEMENT AND THE
NOVEMBER WAIVER AGREEMENT AND HAVE NOT BEEN WAIVED OR CURED, THAT THE AGENT AND
THE LENDERS FORBEAR FROM EXERCISING REMEDIES ON ACCOUNT OF THE EXISTING DEFAULTS
UNTIL THE SOONER TO OCCUR OF MARCH 30, 2006 OR THE OCCURRENCE OF A TERMINATING
EVENT, AS SUCH TERM IS DEFINED IN SECTION 2 HEREIN.
WHEREAS, THE GUARANTOR ACKNOWLEDGES AND AGREES THAT THE GUARANTY AGREEMENT IS
AND REMAINS IN FULL FORCE AND EFFECT ON THE DATE HEREOF AS TO ALL OBLIGATIONS OF
THE BORROWERS TO THE LENDERS OUTSTANDING ON THE DATE HEREOF AND/OR ACCRUING AND
INCURRED HEREAFTER AND THE GUARANTOR HEREBY ACKNOWLEDGES AND CONFIRMS THAT ITS
GUARANTY IS DEEMED PART OF THE LOAN DOCUMENTS IN RESPECT OF THE CREDIT AGREEMENT
REFERENCED IN THIS AGREEMENT.
WHEREAS, THE BORROWERS HAVE REQUESTED THAT LENDERS WAIVE THE WAIVER FEE AS
DEFINED IN SECTION 5.1.(B)(II) OF THE WAIVER AGREEMENT DATED AUGUST 8, 2005 (THE
"AUGUST WAIVER").
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained and intending to be legally bound hereby, the parties hereto covenant
and agree as follows:
1.
FORBEARANCE PERIOD.
(A)
EACH OF THE BORROWERS AND THE GUARANTOR
HEREBY ACKNOWLEDGES AND CONFIRMS (I) THE OCCURRENCE AND CONTINUANCE OF EACH OF
THE EXISTING DEFAULTS, AND (II) THAT THE EXISTING DEFAULTS ARE MATERIAL IN
NATURE.
(B)
SUBJECT TO THE TERMS AND CONDITIONS HEREOF,
INCLUDING, WITHOUT LIMITATION, THE SATISFACTION OF THE CONDITIONS PRECEDENT
DESCRIBED IN SECTION 6 HEREIN, EACH OF THE LENDERS AGREES THAT DURING THE PERIOD
FROM THE TIME THAT ALL CONDITIONS PRECEDENT DESCRIBED IN SECTION 6 HEREIN ARE
SATISFIED THROUGH THE EARLIER OF (I) 2:00 P.M. (EASTERN TIME) ON APRIL 28, 2006,
OR (II) THE OCCURRENCE OF A TERMINATING EVENT (THE "FORBEARANCE PERIOD"), IT
WILL FORBEAR FROM EXERCISING REMEDIES UNDER THE CREDIT AGREEMENT AND THE LOAN
DOCUMENTS IN RESPECT OF THE EXISTING DEFAULTS, OTHER THAN: (I) THE RIGHT UPON
THE OCCURRENCE OF A TERMINATING EVENT TO COLLECT
2
INTEREST AT THE DEFAULT RATE AND (II) THE RIGHTS AND REMEDIES DESCRIBED HEREIN,
WHICH RIGHTS AND REMEDIES THE BORROWERS ACKNOWLEDGES AND CONFIRMS THAT THE
LENDERS ARE ENTITLED TO EXERCISE PURSUANT TO THE TERMS OF THIS AGREEMENT.
(C)
DURING THE FORBEARANCE PERIOD, INTEREST DUE
UNDER THE CREDIT AGREEMENT WILL: (I) ACCRUE AT THE DEFAULT RATE, AND (II) BE
PAID AT THE RATE PROVIDED FOR IN THE CREDIT AGREEMENT AS IF AN EVENT OF DEFAULT
HAD NOT OCCURRED.
THE DIFFERENCE BETWEEN