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.
H.
The Company and the Subsidiaries have advised the Lender that the
Company, the Subsidiaries and the Noteholders will, simultaneously with the
execution of this Third Amended Forbearance Agreement, amend and restate the
Second 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 November 1,
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 "Third Amended Noteholder
Forbearance Agreement").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements set forth in this Third
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 THIRD AMENDED
FORBEARANCE AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THIS
THIRD AMENDED FORBEARANCE AGREEMENT. ALL OTHER CAPITALIZED TERMS SHALL HAVE THE
MEANINGS ASCRIBED IN THE LOAN AGREEMENT. UNLESS THE CONTEXT OF THIS THIRD
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 THIRD AMENDED FORBEARANCE AGREEMENT CONSTITUTES A "LOAN
DOCUMENT" AS DEFINED IN THE LOAN AGREEMENT.
(C)
REFERENCES IN THIS THIRD AMENDED FORBEARANCE AGREEMENT TO THE
LENDER SHALL CONSTITUTE REFERENCES TO DDJ TOTAL RETURN LOAN FUND, L.P. SOLELY IN
ITS CAPACITY AS THE LENDER.
ARTICLE II
FORBEARANCE AND AMENDMENT TO LOAN AGREEMENT
2.1
FORBEARANCE; FORBEARANCE DEFAULT RIGHTS AND REMEDIES.
(A)
EFFECTIVE AS OF THE THIRD AMENDED FORBEARANCE EFFECTIVE DATE (AS
DEFINED BELOW), THE LENDER AGREES THAT UNTIL THE EXPIRATION OF THE "FORBEARANCE
PERIOD" (AS
2
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 DUE UNDER THE NOTES ON JULY 15, 2007 (EXCLUDING,
HOWEVER, IN EACH CASE, ITS RIGHT TO CHARGE INTEREST ON ANY OBLIGATIONS DURING
THE FORBEARANCE PERIOD AT THE DEFAULT INTEREST RATE SPECIFIED IN THE REVOLVING
NOTE AND THE TERM NOTE); PROVIDED, HOWEVER, (I) EACH OF THE COMPANY AND THE
SUBSIDIARIES SHALL COMPLY, EXCEPT TO THE EXTENT SUCH COMPLIANCE IS EXPRESSLY
EXCUSED BY THE TERMS OF THIS THIRD AMENDED FORBEARANCE AGREEMENT, WITH ALL
EXPLICIT RESTRICTIONS OR PROHIBITIONS TRIGGERED BY THE EXISTENCE AND/OR
CONTINUANCE OF ANY EVENT OF DEFAULT