have arisen, or may hereafter arise, due to the occurrence and
continuance of the Specified Existing Defaults on the terms and conditions set
forth herein; and
WHEREAS, capitalized terms used and not defined herein shall have the meanings
ascribed to them in the Indenture and the Fourth Amended Forbearance Agreement.
NOW THEREFORE, in consideration of the premises and the respective covenants and
agreements set forth in this Fifth Amended Forbearance Agreement, the Parties,
each intending to be legally bound, agree that the Fourth Amended Forbearance
Agreement is amended and restated in its entirety as follows:
1.
FORBEARANCE.
(A)
EFFECTIVE AS OF THE FIFTH AMENDED FORBEARANCE EFFECTIVE DATE (AS
DEFINED BELOW), THE NOTEHOLDERS AGREE THAT, UNTIL THE EXPIRATION OF THE FIFTH
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FORBEARANCE PERIOD (AS DEFINED BELOW), THEY WILL FORBEAR FROM EXERCISING, AND
SHALL DIRECT THE INDENTURE TRUSTEE, AND BY SIGNATURE HERETO SO DIRECT THE
INDENTURE TRUSTEE PURSUANT TO SECTION 6.5 OF THE INDENTURE, NOT TO EXERCISE, ANY
RIGHTS AND REMEDIES AGAINST THE COMPANY OR THE SUBSIDIARIES THAT ARE AVAILABLE
UNDER THE INDENTURE, THE INTERCREDITOR AGREEMENT, THE COLLATERAL AGREEMENTS
AND/OR APPLICABLE LAW SOLELY WITH RESPECT TO THE SPECIFIED EXISTING DEFAULTS
(EXCLUDING, HOWEVER, THE NOTEHOLDERS' RIGHT TO CHARGE DEFAULT INTEREST ON THE
NOTES (INCLUDING ON ALL UNPAID INTEREST ON THE NOTES TO THE EXTENT PROVIDED
UNDER THE INDENTURE) DURING THE FIFTH FORBEARANCE PERIOD); PROVIDED, HOWEVER,
THAT NOTHING HEREIN SHALL RESTRICT, IMPAIR OR OTHERWISE AFFECT THE EXERCISE OF
THE NOTEHOLDERS' RIGHTS UNDER THIS FIFTH AMENDED FORBEARANCE AGREEMENT, AND
PROVIDED FURTHER THAT NO SUCH FORBEARANCE SHALL CONSTITUTE A WAIVER WITH RESPECT
TO ANY SUCH SPECIFIED EXISTING DEFAULTS OR ANY OTHER EVENTS OF DEFAULT UNDER THE
INDENTURE.
(B)
AS USED HEREIN, THE TERM "FIFTH FORBEARANCE PERIOD" SHALL MEAN THE
PERIOD BEGINNING ON THE DATE HEREOF AND ENDING UPON THE OCCURRENCE OF A
TERMINATION EVENT. AS USED HEREIN, "TERMINATION EVENT" SHALL MEAN THE EARLIER TO
OCCUR OF (I) JANUARY 10, 2008; AND (II) TWO BUSINESS DAYS AFTER THE DELIVERY BY
THE NOTEHOLDER GROUP TO THE COMPANY AND LENDER OF A WRITTEN NOTICE TERMINATING
THE FIFTH FORBEARANCE PERIOD (THE "TERMINATION NOTICE"), WHICH NOTICE MAY BE
DELIVERED AT ANY TIME UPON OR AFTER THE OCCURRENCE OF ANY FORBEARANCE DEFAULT
(AS DEFINED BELOW); PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, (X)
THIS FIFTH AMENDED FORBEARANCE AGREEMENT SHALL IMMEDIATELY TERMINATE TWO (2)
BUSINESS DAYS AFTER THE OCCURRENCE OF A FORBEARANCE DEFAULT UNDER SUBSECTION (D)
BELOW WITHOUT THE NEED FOR DELIVERY OF THE TERMINATION
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NOTICE OR ANY OTHER NOTICE, AND (Y) THIS FIFTH AMENDED FORBEARANCE AGREEMENT
SHALL IMMEDIATELY TERMINATE UPON THE OCCURRENCE OF A FORBEARANCE DEFAULT UNDER
SUBSECTION (J) BELOW, WITHOUT THE NEED FOR DELIVERY OF THE TERMINATION NOTICE OR
ANY OTHER NOTICE. AS USED HEREIN, THE TERM "FORBEARANCE DEFAULT" SHALL MEAN: (A)
THE FAILURE OF THE COMPANY TO PROVIDE THE NOTEHOLDER GROUP AND ITS FINANCIAL
ADVISORS WITH REASONABLE ACCESS, AS DETERMINED BY THE NOTEHOLDER GROUP IN ITS
REASONABLE DISCRETION, TO ITS CHIEF EXECUTIVE OFFICER, OTHER SENIOR EXECUTIVES
AND OUTSIDE ADVISORS, INCLUDING REPRESENTATIVES OF KROLL ZOLFO COOPER THAT ARE