6.5
COUNTERPARTS. THIS SECOND AMENDED FORBEARANCE AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH WILL BE DEEMED AN ORIGINAL
BUT ALL OF WHICH, WHEN TAKEN TOGETHER, WILL CONSTITUTE ONE AND THE SAME
INSTRUMENT. THIS SECOND AMENDED FORBEARANCE AGREEMENT MAY BE DELIVERED BY
EXCHANGE OF COPIES OF THE SIGNATURE PAGE BY FACSIMILE TRANSMISSION OR ELECTRONIC
MAIL.
6.6
SEVERABILITY. THE PROVISIONS OF THIS SECOND AMENDED FORBEARANCE
AGREEMENT WILL BE DEEMED SEVERABLE AND THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION WILL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE OTHER PROVISIONS
HEREOF; PROVIDED THAT IF ANY PROVISION OF THIS SECOND AMENDED FORBEARANCE
AGREEMENT, AS APPLIED TO ANY PARTY OR TO ANY CIRCUMSTANCE, IS JUDICIALLY
DETERMINED NOT TO BE ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, THE PARTIES AGREE
THAT THE COURT JUDICIALLY MAKING SUCH DETERMINATION MAY MODIFY THE PROVISION IN
A MANNER CONSISTENT WITH ITS OBJECTIVES SUCH THAT IT IS ENFORCEABLE, AND/OR TO
DELETE SPECIFIC WORDS OR PHRASES, AND IN ITS MODIFIED FORM, SUCH PROVISION WILL
THEN BE ENFORCEABLE AND WILL BE ENFORCED.
9
6.7
AGREEMENT. THIS SECOND AMENDED FORBEARANCE AGREEMENT MAY NOT BE
AMENDED OR MODIFIED EXCEPT IN THE MANNER SPECIFIED FOR AN AMENDMENT OF OR
MODIFICATION TO THE LOAN AGREEMENT IN SECTION 12.10 OF THE LOAN AGREEMENT.
6.8
COSTS; EXPENSES. EACH OF THE COMPANY AND THE SUBSIDIARIES HEREBY
AGREES TO PAY TO DDJ TOTAL RETURN LOAN FUND, L.P., DDJ CAPITAL MANAGEMENT, LLC
AND THEIR RESPECTIVE AFFILIATES ON DEMAND ALL COSTS AND EXPENSES (INCLUDING THE
FEES AND EXPENSES OF LEGAL COUNSEL) OF SUCH PERSON INCURRED IN CONNECTION WITH
THE COMPANY AND THE SUBSIDIARIES. THE PROVISIONS OF THIS SECTION 6.8 SHALL
SURVIVE THE TERMINATION OF THIS SECOND AMENDED FORBEARANCE AGREEMENT PROVIDED,
HOWEVER, THAT THE OBLIGATIONS UNDER THIS SECTION 6.8 SHALL TERMINATE UPON THE
PAYMENT IN FULL OF THE OBLIGATIONS AND THE TERMINATION OF THE LOAN AGREEMENT.
6.9
ASSIGNMENT; BINDING EFFECT. NEITHER THE COMPANY NOR ANY SUBSIDIARY
MAY ASSIGN EITHER THIS SECOND AMENDED FORBEARANCE AGREEMENT OR ANY OF ITS
RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER. ALL OF THE TERMS, AGREEMENTS,
COVENANTS, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF THIS SECOND AMENDED
FORBEARANCE AGREEMENT ARE BINDING UPON, AND INURE TO THE BENEFIT OF AND ARE
ENFORCEABLE BY, THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED
ASSIGNS.
6.10
AMENDED AGREEMENT. THE PARTIES HERETO HEREBY ACKNOWLEDGE AND AGREE
THAT THE FIRST AMENDED FORBEARANCE AGREEMENT, DATED AS OF AUGUST 13, 2007, BY
AND AMONG THE LENDER, THE COMPANY AND THE SUBSIDIARIES IS AMENDED AND RESTATED
BY THIS SECOND AMENDED FORBEARANCE AGREEMENT.
6.11
ENTIRE AGREEMENT. THIS SECOND AMENDED FORBEARANCE AGREEMENT, THE
LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS AND THE INTERCREDITOR AGREEMENT,
TOGETHER WITH ANY AND ALL ANNEXES, EXHIBITS AND SCHEDULES THERETO THAT ARE OR
HAVE BEEN DELIVERED PURSUANT THERETO, CONSTITUTE THE ENTIRE AGREEMENT AND
UNDERSTANDING OF THE PARTIES IN RESPECT OF THE SUBJECT MATTER OF THE LOAN
AGREEMENT AND SUPERSEDE ALL PRIOR UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS
BY OR AMONG THE PARTIES, WRITTEN OR ORAL, TO THE EXTENT THEY RELATE IN ANY WAY
WITH RESPECT THERETO.
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