THE INTEREST ACCRUED AND THE INTEREST
PAID SHALL HEREAFTER BE REFERRED TO AS THE "PIK SPREAD".
THE PIK SPREAD SHALL
BECOME DUE AND PAYABLE AT THE EXPIRATION OR TERMINATION OF THE FORBEARANCE
PERIOD.
GE CAPITAL HEREBY AGREES TO WAIVE THE PIK SPREAD PROVIDED THAT:
(I) A
TERMINATING EVENT DOES NOT OCCUR HEREUNDER, (II) THE DEBTOR ACCEPTS GE CAPITAL'S
PROPOSAL FOR THE DIP CREDIT FACILITY AS PROVIDED IN SECTION 7(C)(III) HEREOF,
AND (III) GE CAPITAL PROVIDES THE REPLACEMENT FACILITY (AS DEFINED IN THE
WAIVER AGREEMENT).
THE TERM REPLACEMENT FACILITY AS USED IN THE WAIVER
AGREEMENT SHALL MEAN AN EXIT CREDIT FACILITY TO ENABLE BORROWERS TO EMERGE FROM
CHAPTER 11 AND REPLACE OR REFINANCE THE CREDIT AGREEMENT (AND SUCH DIP FACILITY
PROVIDED BY GE CAPITAL IN THE CHAPTER 11 CASE).
2.
TERMINATING EVENTS.
THE OBLIGATION OF
THE LENDERS TO FORBEAR FROM EXERCISING REMEDIES SHALL TERMINATE UPON THE
OCCURRENCE OF ANY ONE OR MORE OF THE FOLLOWING EVENTS (EACH, A "TERMINATING
EVENT"):
(A)
THE BORROWERS AND/OR GUARANTOR, OR ANY OF
THEM, SHALL FAIL TO EXECUTE AND DELIVER TO THE AGENT ANY DOCUMENTS OR
INSTRUMENTS REASONABLY DETERMINED BY THE AGENT TO BE REASONABLY NECESSARY OR
DESIRABLE TO PERFECT OR TO CONTINUE OR CONFIRM THE PERFECTION OF THE LIENS
AND/OR THE SECURITY INTERESTS OF THE AGENT IN ANY COLLATERAL WITHIN TWO BUSINESS
DAYS AFTER ANY SUCH DOCUMENTS OR INSTRUMENTS ARE PRESENTED TO THE BORROWERS
AND/OR GUARANTOR; AND/OR
(B)
ANY EVENT OF DEFAULT (OTHER THAN THE
EXISTING DEFAULTS) OCCURS; PROVIDED, HOWEVER, THAT NO EVENT OF DEFAULT SHALL BE
DEEMED TO OCCUR BY REASON OF THE FILING BY THE BORROWERS OF A VOLUNTARY
PROCEEDING UNDER CHAPTER 11; AND/OR
(C)
THE BORROWERS AND/OR THE GUARANTOR, OR ANY
OF THEM, SHALL HAVE FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, THE PROVISIONS OF SECTIONS 3 AND 8;
AND/OR
(D)
FAILURE OF THE BORROWERS TO COMPLY WITH THE
DEADLINES SET FORTH IN SECTION 7(C) HEREOF AFTER FIVE (5) BUSINESS DAYS WRITTEN
NOTICE TO THE BORROWERS AND SUCH DEFAULT HAVING NOT BEEN CURED WITHIN SUCH FIVE
(5) DAYS; PROVIDED, HOWEVER, IF THE DEFAULT ARISES UNDER
SECTION 7(C) (I) (II) (III) OR (IV), THEN THE FORBEARANCE PERIOD MAY NOT EXPIRE
SOONER THAN JANUARY 7, 2006; AND/OR
(E)
THE FILING OF A CASE UNDER CHAPTER 11 IN
WHICH DEBTOR-IN-POSSESSION FINANCING IS PROVIDED BY ANY PERSON OR ENTITY OTHER
THAN GE CAPITAL OR A SYNDICATE OF LENDERS ARRANGED AND AGENTED BY GE CAPITAL.
Upon the occurrence of a Terminating Event, without further notice to the
Borrowers or Guarantor or any other action on the part of Lenders, (i) all
Obligations owing to Lenders,
3
together with interest thereon at the Default Rate shall be immediately due and
payable without presentment, demand, protest or other notice of any kind,
(ii) Lenders shall not be obligated to make any further advances or to permit
the further use by the Borrowers of the Collateral and (iii) Lenders may
exercise any and all rights and remedies under the Credit Agreement, the