Common use of Forbearance by Lender Clause in Contracts

Forbearance by Lender. 4.1 Subject to the satisfaction of the terms and conditions set forth herein, and further subject to the provisions of Section 4.2 below or any other limitation set forth in this Agreement, the Lender will not exercise or enforce its rights or remedies against Borrower to which Lender would be entitled under the terms of the Loan Documents by reason of the occurrence of the Designated Defaults; provided, that such forbearance shall not act as a waiver of Lender’s right to enforce any such right or remedy after the Forbearance Termination Date, it being agreed to and understood that on the Forbearance Termination Date, Lender’s agreement to forbear shall automatically and without further action terminate and be of no force and effect, and as a result thereof, Lender shall be permitted to immediately exercise any and all of its rights and remedies it may have as a result of the existence of the Designated Defaults in accordance with the Credit Agreement and other Loan Documents or applicable law. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no Default or Event of Default (other than the Designated Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements to which Lender is a party, it being agreed to and understood that Lender shall be entitled to enforce any and all provisions of any Subordination Agreements to the fullest extent provided therein in accordance with the terms thereof, including, without limitation, invoking any rights that arise as a result of the existence of the Designated Defaults to block payments by Borrower to any subordinated creditor party thereto on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account of the Obligations due to the existence of the Designated Defaults or any other Event of Default, it being agreed to and understood that Lender shall retain all rights to charge such default interest in accordance with the terms of the Loan Documents. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.

Forbearance by Lender. 4.1 Subject (a) In reliance upon the representations of the Borrower herein and in the Loan Documents and subject to the satisfaction each of the terms and conditions set forth herein, and further subject to the provisions of Section 4.2 below or any other limitation set forth in this Agreement, the Lender will not exercise or enforce its rights or remedies against Borrower to which Lender would be entitled under the terms of the Loan Documents by reason of the occurrence of the Designated Defaults; provided, that such forbearance shall not act as a waiver of Lender’s right to enforce any such right or remedy after during the Forbearance Period (but only so long as no Termination Date, it being agreed to and understood that on Event shall occur) the Forbearance Termination Date, Lender’s agreement Lenders hereby agree to forbear shall automatically and without further action terminate and be of no force and effect, and as a result thereof, Lender shall be permitted to immediately exercise any and all of its rights and remedies it may have as a result of from exercising the existence of the Designated Defaults in accordance with the Credit Agreement and other Loan Documents or applicable law. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no Default or Event of Default (other than the Designated Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements with respect to which Lender is a party, it being agreed to the Existing Defaults. The Borrower hereby acknowledges and understood agrees that Lender nothing in this Section 4 or elsewhere in this Agreement shall be entitled to enforce any and all provisions deemed or otherwise construed as a waiver by Lenders of the Existing Defaults, and/or of any Subordination Agreements of the Lender’s rights, remedies, powers, privileges, and discretions pursuant to the fullest extent provided therein Loan Documents, applicable law, or otherwise. Without limiting the generality of the foregoing, the Borrower expressly acknowledges and agrees: (i) that in accordance with no event and under no circumstance shall the terms thereofagreements by the Lenders pursuant to this Agreement be deemed or otherwise construed to modify, amend, limit, or waive the unconditional obligation of the Borrower to pay in full the entire amount of all Obligations, including, without limitation, invoking any rights that arise as a result set forth in Section 3 herein (further including, without limitation, with respect to the Prepayment Fee, the Final Payment, the non-draw fee set forth in Section 2.4 of the existence Loan Agreement and the Lenders’ Expenses as set forth in Section 2.4 of the Designated Loan Agreement) and (ii) that from and after the occurrence of the Existing Defaults interest shall at all times continue to block payments by Borrower to any subordinated creditor party thereto accrue on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account unpaid principal amount of the Obligations due and all interest (accrued and hereafter accruing) shall be at the Default Rate, as provided in the Loan Agreement, as and when determined solely and exclusively by the Lenders from time to time. (b) This Agreement shall only constitute an agreement by the existence Lenders to forbear from enforcing their rights and remedies based upon the Existing Defaults upon the terms and conditions set forth herein so long as no Termination Event shall occur. Upon the expiration of the Designated Defaults or any other Event Forbearance Period, the agreement of Default, it being agreed the Lenders to forbear as set forth in this Agreement shall automatically terminate and understood that Lender shall retain all the Lenders may immediately commence enforcing their rights and remedies pursuant to charge such default interest in accordance with the terms of the Loan Documents, applicable law or otherwise, in such order and manner as the Lenders may determine appropriate in their sole and exclusive discretion from time to time. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.

Forbearance by Lender. 4.1 Subject to (a) Each Obligor acknowledges and agrees that the satisfaction Stated Event of Default has occurred and is continuing as of the terms and conditions set forth hereindate hereof, and further subject agrees that Lender has the right to immediately commence enforcement of Lender’s rights and remedies under the provisions Loan Documents and otherwise, including, without limitation, demanding the payment of Section 4.2 below or any other limitation set forth the Obligations and exercising its rights and remedies against the Obligors and the Collateral. In consideration of the Obligors’ performance in accordance with each and every term and condition of this Agreement, as and when due, the Lender will not exercise or enforce agrees to forbear from accelerating the Obligations, demanding payment thereof, and exercising its rights or and remedies against Borrower the Obligors and the Collateral otherwise available to which Lender would be entitled under the terms of the Loan Documents by reason of upon the occurrence of such Stated Event of Default, until the Designated Defaults; provided, that such forbearance shall not act as a waiver of Lender’s right to enforce any such right or remedy after earlier of: (i) the Forbearance Termination Date, it being agreed to or (ii) the occurrence of a Termination Event. The period commencing as of the date of the effectiveness of this Agreement and understood that ending on the earlier of (i) or (ii) above shall be referred to as the “Forbearance Termination DatePeriod”. Further, Lender’s agreement during the Forbearance Period, and in consideration of the Obligors’ performance in accordance with each and every term and condition of this Agreement, as and when due, the Lender agrees to forbear shall automatically and without further from taking (or omitting to take) any action terminate and be of no force and effect, and as a result thereof, otherwise available to Lender shall be permitted to immediately exercise any and all of its rights and remedies it may have solely as a result of the existence of the Designated Q4 2018 FCCR Default. (b) Each Obligor covenants and agrees that, except as provided for in Paragraph 2 hereof, which is a one-time waiver and relates solely to the Specified Stated Events of Default, nothing contained in this Agreement shall: (i) constitute (x) a waiver of the Subject Defaults in accordance (or of any other Default or Event of Default, whether now existing or hereafter arising under any of the Loan Documents), and/or (y) a waiver of any right or remedy which the Lender may have on account thereof, or (ii) without limiting the foregoing, preclude the exercise of rights and remedies (a) by the Lender with respect to (x) rights to charge Obligors’ accounts, or otherwise demand payment, for amounts which may be due under the Credit Agreement and other Loan Documents or applicable law. Furthermoreother similar rights, nothing contained herein shall or (y) rights under Cash Management Services or Bank Product Agreements with Obligors, including rights to demand usual and customary payments due in connection therewith; (b) which Lender may have against any parties other than Obligors who may be construed obligated on account of the Obligations, or (c) as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no a result of any Default or Event of Default (whether now existing or hereafter arising) other than the Designated Subject Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements to which Lender is a party, it being agreed to and understood that Lender shall be entitled to enforce any and all provisions of any Subordination Agreements to the fullest extent provided therein in accordance with the terms thereof, including, without limitation, invoking any rights that arise as a result of the existence of the Designated Defaults to block payments by Borrower to any subordinated creditor party thereto on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account of the Obligations due to the existence of the Designated Defaults or any other Event of Default, it being agreed to and understood that Lender shall retain all rights to charge such default interest in accordance with the terms of the Loan Documents. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.

Forbearance by Lender. 4.1 Subject (a) The Borrower acknowledges and agrees that the Identified Events of Default have occurred and are continuing, and further acknowledges and agrees that the Lender has the right to immediately accelerate and commence enforcement of its rights and remedies under the satisfaction Loan Documents and applicable law as a result thereof. In consideration of the Borrower’s performance and strict compliance in accordance with each term and condition of this Agreement (TIME BEING OF THE ESSENCE), as and when due, the Lender shall forbear from enforcing its rights and remedies under the Loan Documents and applicable law as a result of the Identified Events of Default until the earliest of: (i) 4:00 pm (Boston time) on Xxxxx 00, 0000, (xx) the date of the occurrence of any Default Event or Event of Default (excluding any Identified Events of Default) under the Loan Agreement or any other Loan Document, (iii) the date of the occurrence of any breach by Borrower of any of the terms and conditions set forth herein, and further subject to the provisions of Section 4.2 below or any other limitation set forth in this Agreement, including but not limited to the Lender will not exercise obligations set forth in Section 6 hereof or enforce its rights or remedies against Borrower to which Lender would be entitled under the terms obligations set forth in Section 6 of the Loan Documents Eleventh Amendment, as adopted and incorporated by reason reference herein; or (iv) the date on which the Borrower, any Guarantor, or any affiliate of the occurrence Borrower or any Guarantor, or any person or entity claiming by or through either the Borrower or any Guarantor joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Lender, or any of its affiliates, relating to the Obligations or any of the Designated Defaults; providedtransactions contemplated by the Loan Documents, that such forbearance shall not act this Agreement or any other documents, agreements or instruments executed in connection with this Agreement. Each of the events described in the foregoing clauses (i), (ii), (iii) and (iv) are referred to herein as a waiver “Termination Event,” and the date of Lender’s right the earliest to enforce occur of any such right or remedy after Termination Event is referred to herein as the “Forbearance Termination Date, it being agreed to .” The period commencing as of the Forbearance and understood that Thirteenth Amendment Agreement Effective Date (as defined below) and ending on the Forbearance Termination Date, Lender’s agreement to forbear shall automatically and without further action terminate and be of no force and effect, and as a result thereof, Lender Date shall be permitted referred to immediately exercise any and all of its rights and remedies it may have as a result of the existence of the Designated Defaults in accordance with the Credit Agreement and other Loan Documents or applicable law. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no Default or Event of Default (other than the Designated Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements to which Lender is a party, it being agreed to and understood that Lender shall be entitled to enforce any and all provisions of any Subordination Agreements to the fullest extent provided therein in accordance with the terms thereof, including, without limitation, invoking any rights that arise as a result of the existence of the Designated Defaults to block payments by Borrower to any subordinated creditor party thereto on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account of the Obligations due to the existence of the Designated Defaults or any other Event of Default, it being agreed to and understood that Lender shall retain all rights to charge such default interest in accordance with the terms of the Loan Documents. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.

Forbearance by Lender. 4.1 Subject (a) The Borrower acknowledges and agrees that the Identified Events of Default have occurred and are continuing, and further acknowledges and agrees that the Lender has the right to immediately accelerate and commence enforcement of its rights and remedies under the satisfaction Loan Documents and applicable law as a result thereof. In consideration of the Borrower’s performance and strict compliance in accordance with each term and condition of this Agreement (TIME BEING OF THE ESSENCE), as and when due, the Lender shall forbear from enforcing its rights and remedies under the Loan Documents and applicable law as a result of the Identified Events of Default until the earliest of: (i) 4:00 pm (Boston time) on February 28, 2011, (ii) the date of the occurrence of any Default Event or Event of Default (excluding any Identified Events of Default) under the Loan Agreement or any other Loan Document, (iii) the date of the occurrence of any breach by Borrower of any of the terms and conditions set forth herein, and further subject to the provisions of Section 4.2 below or any other limitation set forth in this Agreement, including but not limited to the Lender will not exercise obligations set forth in Section 6 hereof or enforce its rights or remedies against Borrower to which Lender would be entitled under the terms obligations set forth in Section 6 of the Loan Documents Eleventh Amendment, as adopted and incorporated by reason reference herein; or (iv) the date on which the Borrower, any Guarantor, or any affiliate of the occurrence Borrower or any Guarantor, or any person or entity claiming by or through either the Borrower or any Guarantor joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Lender, or any of its affiliates, relating to the Obligations or any of the Designated Defaults; providedtransactions contemplated by the Loan Documents, that such forbearance shall not act this Agreement or any other documents, agreements or instruments executed in connection with this Agreement. Each of the events described in the foregoing clauses (i), (ii), (iii) and (iv) are referred to herein as a waiver “Termination Event,” and the date of Lender’s right the earliest to enforce occur of any such right or remedy after Termination Event is referred to herein as the “Forbearance Termination Date, it being agreed to .” The period commencing as of the Forbearance and understood that Twelfth Amendment Agreement Effective Date (as defined below) and ending on the Forbearance Termination Date, Lender’s agreement to forbear shall automatically and without further action terminate and be of no force and effect, and as a result thereof, Lender Date shall be permitted referred to immediately exercise any and all of its rights and remedies it may have as a result of the existence of the Designated Defaults in accordance with the Credit Agreement and other Loan Documents or applicable law. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no Default or Event of Default (other than the Designated Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements to which Lender is a party, it being agreed to and understood that Lender shall be entitled to enforce any and all provisions of any Subordination Agreements to the fullest extent provided therein in accordance with the terms thereof, including, without limitation, invoking any rights that arise as a result of the existence of the Designated Defaults to block payments by Borrower to any subordinated creditor party thereto on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account of the Obligations due to the existence of the Designated Defaults or any other Event of Default, it being agreed to and understood that Lender shall retain all rights to charge such default interest in accordance with the terms of the Loan Documents. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.

Forbearance by Lender. 4.1 Subject (a) The Borrower acknowledges and agrees that the Identified Events of Default have occurred and are continuing, and further acknowledges and agrees that the Lender has the right to immediately accelerate and commence enforcement of its rights and remedies under the satisfaction Loan Documents and applicable law as a result thereof. In consideration of the Borrower’s performance and strict compliance in accordance with each term and condition of this Agreement (TIME BEING OF THE ESSENCE), as and when due, the Lender shall forbear from enforcing its rights and remedies under the Loan Documents and applicable law as a result of the Identified Events of Default until the earliest of: (i) 4:00 pm (Boston time) on January 2, 2011, (ii) the date of the occurrence of any Default Event or Event of Default (excluding any Identified Events of Default) under the Loan Agreement or any other Loan Document, (iii) the date of the occurrence of any breach by Borrower of any of the terms and conditions set forth herein, and further subject to the provisions of Section 4.2 below or any other limitation set forth in this Agreement, including but not limited to the Lender will not exercise obligations set forth in Section 6 hereof; or enforce its rights (iv) the date on which the Borrower, any Guarantor, or remedies against Borrower to which Lender would be entitled under the terms any affiliate of the Loan Documents Borrower or any Guarantor, or any person or entity claiming by reason or through either the Borrower or any Guarantor joins in, assists, cooperates or participates as an adverse party or adverse witness in any suit or other proceeding against the Lender, or any of its affiliates, relating to the Obligations or any of the occurrence transactions contemplated by the Loan Documents, this Agreement or any other documents, agreements or instruments executed in connection with this Agreement. Each of the Designated Defaults; providedevents described in the foregoing clauses (i), that such forbearance shall not act (ii), (iii) and (iv) are referred to herein as a waiver “Termination Event,” and the date of Lender’s right the earliest to enforce occur of any such right or remedy after Termination Event is referred to herein as the “Forbearance Termination Date, it being agreed to .” The period commencing as of the date of the effectiveness of this Agreement and understood that ending on the Forbearance Termination Date, Lender’s agreement to forbear shall automatically and without further action terminate and be of no force and effect, and as a result thereof, Lender Date shall be permitted referred to immediately exercise any and all of its rights and remedies it may have as a result of the existence of the Designated Defaults in accordance with the Credit Agreement and other Loan Documents or applicable law. Furthermore, nothing contained herein shall be construed as requiring Lender to extend the Forbearance Termination Date. Lender specifically agrees that, prior to the Forbearance Termination Date (and provided that no Default or Event of Default (other than the Designated Defaults) under the Loan Documents exists and all other conditions to funding are satisfied) Lender shall continue to administer the lines of credit under the Credit Agreement (the “Credit Lines”) and permit advances (up to an aggregate amount not to exceed the lesser of the (i) Availability or (ii) the amount of disbursements set forth in the Cash Flow Forecast) and repayments in the same manner and in accordance with the same terms as governed by the Loan Documents. On the Forbearance Termination Date, all such indebtedness as is then outstanding pursuant to the Credit Lines shall be considered as part of the Obligations and shall thereupon be immediately due and payable in full. It is expressly acknowledged and agreed by the Borrower that Lender’s agreement herein to continue administering the Credit Lines as provided for hereby during the forbearance period shall not in any manner be deemed to prejudice Lender or act as a waiver of its otherwise applicable rights and remedies to collect and enforce the full amount of the Obligations as of the Forbearance Termination Date. The following Events of Default occurring after the date hereof (“Future Permitted Defaults”) will not constitute Events of Termination: a. Borrower’s failure to timely file its periodic reports with the Securities and Exchange Commission (“SEC”) for any period prior to the earlier of April 1, 2006, or such earlier date as may be required by the SEC; b. Borrower’s failure to present auditor’s reviews of annual financial statements when required by the Loan Documents for any period prior to the fiscal period ending December 31, 2005 which have not been provided to Lender. If on December 15, 2005, Borrower is in full compliance with this Agreement and the other Loan Documents and no Event of Default (other than Designated Defaults or Future Permitted Defaults exist) Borrower may request a 30 day extension of the Forbearance Termination Date to January 14, 2006, provided such request is accompanied by payment of an additional forbearance fee in the sum of $500,000, whereupon the Forbearance Termination Date shall, absent any Event of Termination, be so extended. 4.2 Notwithstanding anything to the contrary contained in Section 4.1: a. the Designated Defaults shall constitute existing Events of Default for the purpose of determining whether or not certain actions or in-actions may be taken or otherwise acquiesced to by or on behalf of the Borrower, as set forth in the Loan Documents, and, accordingly, any actions or in-actions taken or omitted by the Borrower in violation of such provisions while any Event of Default (including any Designated Default) exists will constitute additional Events of Default under the Credit Agreement and the other Loan Documents, as well as a breach of the terms of this Agreement; b. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any of Lender’s rights and remedies under any Subordination Agreements to which Lender is a party, it being agreed to and understood that Lender shall be entitled to enforce any and all provisions of any Subordination Agreements to the fullest extent provided therein in accordance with the terms thereof, including, without limitation, invoking any rights that arise as a result of the existence of the Designated Defaults to block payments by Borrower to any subordinated creditor party thereto on account of any debt owing to such subordinated creditor; and c. under no circumstances shall the forbearance by Lender under this Agreement be deemed to extend to any rights of Lender under the Loan Documents to charge a default rate of interest on account of the Obligations due to the existence of the Designated Defaults or any other Event of Default, it being agreed to and understood that Lender shall retain all rights to charge such default interest in accordance with the terms of the Loan Documents. 4.3 Borrower acknowledges and agrees that the outstanding Advances under the Revolving Facility exceed Availability in the amount set forth in the Borrowing Certificate dated September 15, 2005, executed and delivered by Borrower to Lender (the “Overadvance”). The Parties hereby agree that, the Overadvance shall not be included in the outstanding amount of the Revolving Facility for purposes of calculating Availability. Borrower agrees that Lender shall modify the liquidity factors and reserves as reflected on the Borrowing Certificate.