EXPRESSLY
EXCUSED BY THE TERMS OF THIS AGREEMENT, WITH ALL EXPLICIT RESTRICTIONS OR
PROHIBITIONS TRIGGERED BY THE EXISTENCE AND/OR CONTINUANCE OF ANY EVENT OF
DEFAULT UNDER THE LOAN AGREEMENT, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, (II) NOTHING HEREIN SHALL RESTRICT, IMPAIR OR OTHERWISE AFFECT THE
LENDER'S RIGHTS AND REMEDIES UNDER ANY AGREEMENTS CONTAINING SUBORDINATION
PROVISIONS IN FAVOR OF THE LENDER (INCLUDING, WITHOUT LIMITATION, ANY RIGHTS OR
REMEDIES AVAILABLE TO THE LENDER AS A RESULT OF THE OCCURRENCE OR CONTINUATION
OF THE SPECIFIED DEFAULTS), AND (III) NOTHING HEREIN SHALL RESTRICT, IMPAIR OR
OTHERWISE AFFECT THE EXERCISE OF THE LENDER'S RIGHTS UNDER THIS AGREEMENT.
AS
USED HEREIN, THE TERM "SPECIFIED DEFAULTS" SHALL MEAN THE EVENTS OF DEFAULT
LISTED ON ANNEX I HERETO.
DURING THE FORBEARANCE PERIOD, ANY CONDITION TO THE
MAKING OF AN ADVANCE UNDER THE LOAN AGREEMENT THAT WOULD NOT BE MET SOLELY
BECAUSE OF THE OCCURRENCE AND CONTINUANCE OF ANY SPECIFIED DEFAULT IS HEREBY
WAIVED.
(B)
AS USED HEREIN, THE TERM "FORBEARANCE PERIOD" SHALL MEAN THE
PERIOD BEGINNING ON THE FORBEARANCE EFFECTIVE DATE (AS DEFINED BELOW) AND ENDING
UPON THE OCCURRENCE OF A TERMINATION EVENT.
AS USED HEREIN, "TERMINATION EVENT"
SHALL MEAN THE EARLIER TO OCCUR OF (I) THE DELIVERY BY THE LENDER TO THE COMPANY
OF A WRITTEN NOTICE TERMINATING THE FORBEARANCE PERIOD, WHICH NOTICE MAY BE
DELIVERED AT ANY TIME UPON OR AFTER THE OCCURRENCE OF ANY FORBEARANCE DEFAULT
(AS DEFINED BELOW), AND (II) THE EARLIER OF (X) 11:00 A.M. (EASTERN DAYLIGHT
TIME) ON JULY 2, 2007 AND (Y) IF THE 45-DAY STANDSTILL PERIOD UNDER SECTION
3.2(B)(I)(A) OF THE INTERCREDITOR AGREEMENT HAS COME INTO EFFECT, 11:00 A.M.
(EASTERN DAYLIGHT TIME) ON THE DATE THAT IS TWO (2) BUSINESS DAYS PRIOR TO THE
TERMINATION OF SUCH STANDSTILL PERIOD.
AS USED HEREIN, THE TERM "FORBEARANCE
DEFAULT" SHALL MEAN: (A) THE OCCURRENCE OF ANY EVENT OF DEFAULT THAT IS NOT A
SPECIFIED DEFAULT, (B) THE FAILURE OF THE COMPANY OR ANY SUBSIDIARY TO COMPLY
WITH ANY TERM, CONDITION, COVENANT OR AGREEMENT SET FORTH IN THIS AGREEMENT, (C)
THE FAILURE OF ANY REPRESENTATION OR WARRANTY MADE BY THE COMPANY OR ANY
SUBSIDIARY UNDER THIS AGREEMENT TO BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
AS OF THE DATE WHEN MADE, (D) ANY OCCURRENCE, EVENT OR CHANGE IN FACTS OR
CIRCUMSTANCES OCCURRING ON OR AFTER THE FORBEARANCE EFFECTIVE DATE THAT WOULD
RESULT IN A MATERIAL ADVERSE CHANGE, (E) THE OCCURRENCE OF ANY VIOLATION OR
BREACH OF, OR OTHER FAILURE TO OBSERVE, PERFORM OR COMPLY WITH, THE TERMS OF THE
INTERCREDITOR AGREEMENT BY THE TRUSTEE (AS DEFINED IN THE INTERCREDITOR
AGREEMENT), OR (F) THE COMMENCEMENT BY OR AGAINST THE COMPANY OR ANY SUBSIDIARY
OF A PROCEEDING UNDER ANY DEBTOR RELIEF LAWS.
ANY FORBEARANCE DEFAULT SHALL
CONSTITUTE AN IMMEDIATE EVENT OF DEFAULT UNDER THE LOAN AGREEMENT.
2
(C)
UPON A TERMINATION EVENT, THE AGREEMENT OF THE LENDER HEREUNDER TO
FORBEAR FROM EXERCISING ITS RIGHTS AND REMEDIES IN RESPECT OF THE SPECIFIED
DEFAULTS SHALL IMMEDIATELY TERMINATE WITHOUT THE REQUIREMENT OF ANY DEMAND,