Agreement and the Collateral
Agreements (as defined in the Indenture) until October 17, 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 "Second Amended Noteholder Forbearance
Agreement").
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements set forth in this Second
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 SECOND AMENDED
FORBEARANCE AGREEMENT SHALL HAVE THE MEANINGS ASCRIBED TO SUCH TERMS IN THIS
SECOND AMENDED FORBEARANCE AGREEMENT. ALL OTHER CAPITALIZED TERMS SHALL HAVE THE
MEANINGS ASCRIBED IN THE LOAN AGREEMENT. UNLESS THE CONTEXT OF THIS SECOND
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 SECOND AMENDED FORBEARANCE AGREEMENT CONSTITUTES A "LOAN
DOCUMENT" AS DEFINED IN THE LOAN AGREEMENT.
(C)
REFERENCES IN THIS SECOND 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 SECOND 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 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
2
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 SECOND AMENDED FORBEARANCE AGREEMENT, WITH ALL EXPLICIT RESTRICTIONS OR
PROHIBITIONS TRIGGERED BY THE EXISTENCE AND/OR CONTINUANCE OF ANY EVENT OF
DEFAULT UNDER THE LOAN AGREEMENT, THIS SECOND AMENDED FORBEARANCE AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, (II) NOTHING HEREIN SHALL RESTRICT, IMPAIR OR
OTHERWISE AFFECT THE LENDER'S RIGHTS AND REMEDIES UNDER ANY AGREEMENTS
CONTAINING SUBORDINATION PROVISIONS IN FAVOR OF THE LENDER (INCLUDING, WITHOUT
LIMITATION, ANY RIGHTS OR REMEDIES AVAILABLE TO THE LENDER AS A RESULT OF THE
OCCURRENCE OR CONTINUATION OF THE SPECIFIED DEFAULTS OR ANY EVENT OF DEFAULT
RESULTING FROM THE COMPANY'S FAILURE TO MAKE THE SCHEDULED INTEREST PAYMENT DUE
UNDER THE NOTES ON JULY 15,