THE TRANSACTIONS CONTEMPLATED HEREBY.
6
(C)
THE BORROWERS INTEND TO FILE A SO-CALLED
PRE-PACKAGED CHAPTER 11 CASE AND, IN CONNECTION THEREWITH, THE BORROWERS SHALL:
(I)
CIRCULATE TO LENDERS FOR REVIEW, A
PROPOSED AGREEMENT BETWEEN THE BORROWERS AND THE HOLDERS OF THE SENIOR UNSECURED
HIGH YIELD NOTES RESOLVING ALL DEFAULTS THEREUNDER ON OR BEFORE DECEMBER 21,
2005;
(II)
CIRCULATE A PLAN AND DISCLOSURE STATEMENT
TO GE CAPITAL FOR APPROVAL AND COMMENT ON OR BEFORE DECEMBER 26, 2005;
(III)
ON OR BEFORE DECEMBER 26, 2005, THE
BORROWERS SHALL HAVE EITHER (I) ACCEPTED GE CAPITAL'S PROPOSAL TO PROVIDE A DIP
CREDIT FACILITY (THE"DIP CREDIT FACILITY")
, OR (II) DELIVERED TO AGENT A
WRITTEN COMMITMENT FROM A REPUTABLE LENDER TO PROVIDE A DIP CREDIT FACILITY THAT
PROVIDES FOR PAYMENT IN FULL OF THE OBLIGATIONS NOT LATER THAN THE DATE SUCH DIP
CREDIT FACILITY IS APPROVED BY FINAL ORDER OF THE BANKRUPTCY COURT.
(IV)
DISTRIBUTE SOLICITATIONS TO THE PLAN AND
DISCLOSURE STATEMENT ON OR BEFORE JANUARY 2, 2005;
(V)
FILE CHAPTER 11 ON OR BEFORE FEBRUARY 1,
2006; AND
(VI)
CONFIRM A CHAPTER 11 CASE ON OR BEFORE
MARCH 30, 2006.
(D)
THE BORROWERS AND GUARANTOR HEREBY EXPRESSLY
ACKNOWLEDGE AND CONFIRM THAT THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE
BEING SPECIFICALLY RELIED UPON BY THE LENDERS AS A MATERIAL INDUCEMENT TO THE
LENDERS TO ENTER INTO THIS AGREEMENT AND TO FORBEAR FROM EXERCISING THE LENDERS'
RIGHTS AND REMEDIES UNDER THE CREDIT AGREEMENT AND THE LOAN DOCUMENTS, OTHER
THAN THEIR RIGHT UPON THE OCCURRENCE OF A TERMINATING EVENT TO CHARGE INTEREST
AT THE DEFAULT RATE AND THE RIGHTS AND REMEDIES DESCRIBED HEREIN.
THE FOREGOING
REPRESENTATIONS AND WARRANTIES SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE DOCUMENTS, AGREEMENTS AND INSTRUMENTS TO BE EXECUTED OR
DELIVERED HEREWITH.
8.
FEES; EXPENSES; COSTS.
THE BORROWERS
SHALL PAY ON DEMAND ALL REASONABLE OUT-OF-POCKET COSTS AND EXPENSES OF THE AGENT
AND THE LENDERS, HERETOFORE OR HEREAFTER INCURRED, WHICH ARE RELATED TO OR IN
CONNECTION WITH THIS AGREEMENT, THE CREDIT AGREEMENT, AND ANY DOCUMENTS,
AGREEMENTS OR INSTRUMENTS EXECUTED IN CONNECTION HEREWITH OR THEREWITH
INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND EXPENSES OF THE
CONSULTANTS, ATTORNEYS OR OTHER PROFESSIONALS RETAINED BY THE AGENT OR ANY OF
THE LENDERS (THE "DOCUMENTATION FEES").
IN ADDITION, THE BORROWERS SHALL PAY TO
THE AGENT A FORBEARANCE FEE IN AN AMOUNT EQUAL TO $300,000 (THE "AGENT FEE").
NOTHING IN THIS AGREEMENT SHALL BE INTENDED OR CONSTRUED TO HOLD THE AGENT OR
THE LENDERS LIABLE OR RESPONSIBLE FOR ANY EXPENSE, LIABILITY OR OBLIGATION OF
ANY KIND OR NATURE WHATSOEVER INCURRED BY THE BORROWERS OR ANY GUARANTOR
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES, OTHER
PROFESSIONALS' FEES AND EXPENSES, ANY CRISIS MANAGER'S FEES AND EXPENSES, WAGES,
SALARIES, PAYROLL TAXES, WITHHOLDINGS, BENEFITS OR OTHER AMOUNTS PAYABLE BY OR
ON BEHALF OF THE BORROWERS OR ANY GUARANTOR).
ADDITIONALLY, THE AGENT MAY
RESERVE FROM THE AMOUNTS OTHERWISE AVAILABLE TO THE BORROWERS AS A REVOLVING
CREDIT ADVANCE SUCH AMOUNTS NECESSARY TO PAY THE DOCUMENTATION FEES AND AGENT
FEE.
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9.
DISGORGEMENT.