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 February 5, 2008 (as such agreement may be amended, modified,
supplemented or amended and restated from time to time, the "DDJ Sixth 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 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
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WHEREAS, capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Indenture and the Fifth Amended Forbearance Agreement.
NOW THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth in this Sixth Amended Forbearance Agreement, the Parties,
each intending to be legally bound, agree that the Fifth Amended Forbearance
Agreement is amended and restated in its entirety as follows:
1.
FORBEARANCE.
(A)
EFFECTIVE AS OF THE SIXTH AMENDED
FORBEARANCE EFFECTIVE DATE (AS DEFINED BELOW), THE NOTEHOLDERS AGREE THAT, UNTIL
THE EXPIRATION OF THE SIXTH 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 SIXTH FORBEARANCE
PERIOD); PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL RESTRICT, IMPAIR OR
OTHERWISE AFFECT THE EXERCISE OF THE NOTEHOLDERS' RIGHTS UNDER THIS SIXTH
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.
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(B)
AS USED HEREIN, THE TERM "SIXTH 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) FEBRUARY 8, 2008; AND (II) TWO BUSINESS DAYS
AFTER THE DELIVERY BY THE NOTEHOLDER GROUP TO THE COMPANY AND LENDER OF A
WRITTEN NOTICE TERMINATING THE SIXTH FORBEARANCE PERIOD (THE "TERMINATION
NOTICE"), WHICH NOTICE MAY BE DELIVERED AT ANY TIME UPON OR AFTER THE OCCURRENCE
OF ANY FORBEARANCE DEFAULT (AS DEFINED BELOW); PROVIDED, HOWEVER, THAT
NOTWITHSTANDING THE FOREGOING, (X) THIS SIXTH AMENDED FORBEARANCE AGREEMENT
SHALL IMMEDIATELY TERMINATE TWO (2) BUSINESS DAYS AFTER THE OCCURRENCE OF A
FORBEARANCE DEFAULT UNDER SUBSECTION (D) BELOW