Events of Default referred to herein as the
"Specified Existing Defaults," all of which are specified on schedule A attached
hereto, have occurred and are continuing;
WHEREAS, the Company anticipates that during the Forbearance Period (as defined
below), certain additional Defaults and Events of Default will occur and
continue, referred to herein as the "Anticipated Defaults," all of which are
specified on schedule A attached hereto;
WHEREAS, the Company and the Subsidiaries have advised the Noteholders that the
Company, the Subsidiaries and Lender will, simultaneously with the execution of
this Agreement, enter into a separate forbearance agreement, pursuant to which
Lender shall agree to forbear from exercising the rights and remedies available
to Lender under 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
forbearance agreement (as such agreement may be amended, modified, supplemented
or amended and restated from time to time, the "DDJ Forbearance Agreement");
WHEREAS, at the Company's request, the Noteholders have agreed to forbear from
exercising, and 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
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hereafter arise, due to the occurrence and continuance of the Specified Existing
Defaults or the Anticipated Defaults, on the terms and conditions set forth
herein; and
WHEREAS, capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Indenture.
NOW THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth in this Agreement, the Parties, each intending to be
legally bound, agree as follows:
1.
FORBEARANCE.
(A)
EFFECTIVE AS OF THE FORBEARANCE EFFECTIVE DATE (AS DEFINED BELOW),
THE NOTEHOLDERS AGREE THAT, UNTIL THE EXPIRATION OF THE 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 AND ANY
ANTICIPATED 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 FORBEARANCE PERIOD);
PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL RESTRICT, IMPAIR OR OTHERWISE
AFFECT THE EXERCISE OF THE NOTEHOLDERS' RIGHTS UNDER THIS AGREEMENT, AND
PROVIDED FURTHER THAT NO SUCH FORBEARANCE
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SHALL CONSTITUTE A WAIVER WITH RESPECT TO ANY SUCH SPECIFIED EXISTING DEFAULTS,
ANTICIPATED DEFAULTS OR ANY OTHER EVENTS OF DEFAULT UNDER THE INDENTURE.
(B)
AS USED HEREIN, THE TERM "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