SUBSIDIARIES TO COMPLY WITH ANY COVENANT OR OTHER PROVISION IN THE LOAN
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR (II) THE OCCURRENCE OR CONTINUANCE OF
ANY PRESENT OR FUTURE EVENT OF DEFAULT.
6.2
RATIFICATION AND CONFIRMATION; SURVIVAL.
EXCEPT AS EXPRESSLY SET FORTH IN THIS FOURTH AMENDED FORBEARANCE AGREEMENT, THE
TERMS, PROVISIONS AND CONDITIONS OF THE LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS ARE HEREBY RATIFIED AND CONFIRMED AND SHALL REMAIN UNCHANGED AND IN
FULL FORCE AND EFFECT WITHOUT INTERRUPTION OR IMPAIRMENT OF ANY KIND.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SECTIONS 2.2 AND 2.3 SHALL
SURVIVE THE TERMINATION OF THIS FOURTH AMENDED FORBEARANCE AGREEMENT.
6.3
GOVERNING LAW. THIS FOURTH AMENDED FORBEARANCE
AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
6.4
HEADINGS. THE ARTICLE AND SECTION HEADINGS
CONTAINED IN THIS FOURTH AMENDED FORBEARANCE AGREEMENT ARE INSERTED FOR
CONVENIENCE ONLY AND WILL NOT AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF
THIS FOURTH AMENDED FORBEARANCE AGREEMENT.
6.5
COUNTERPARTS. THIS FOURTH 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 FOURTH AMENDED FORBEARANCE AGREEMENT MAY BE
DELIVERED BY EXCHANGE OF COPIES OF THE SIGNATURE PAGE BY FACSIMILE TRANSMISSION
OR ELECTRONIC MAIL.
9
6.6
SEVERABILITY. THE PROVISIONS OF THIS FOURTH
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 FOURTH
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.
6.7
AGREEMENT. THIS FOURTH 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 FOURTH 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 FOURTH AMENDED FORBEARANCE
AGREEMENT OR ANY