PARTIES THERETO.
(F)
"TERMINATION EVENT" SHALL MEAN THE OCCURRENCE OF ANY OF THE
FOLLOWING EVENTS:
(I)
ANY EVENT OF DEFAULT, OTHER THAN THE SPECIFIED DEFAULT;
(II)
ANY BREACH OF ANY OF THE CONDITIONS OR AGREEMENTS PROVIDED IN
THIS FORBEARANCE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE COVENANT SET
FORTH IN SECTION 4.2 (IT BEING AGREED THAT PRIOR TO DECLARING A TERMINATION
EVENT FOR FAILURE TO SATISFY THE COVENANT IN SECTION 4.2, THE HOLDERS OR THEIR
REPRESENTATIVE MUST FIRST PROVIDE THE COMPANY WITH NOTICE OF THE BREACH AND AT
LEAST FIVE (5) FULL BUSINESS DAYS TO CURE SUCH BREACH);
(III)
THE TRUSTEE PURSUES ANY OTHER REMEDIES OR RIGHTS PERMITTED UNDER
SECTION 502 OR 503 OF THE INDENTURE (NOTWITHSTANDING ITS HAVING RECEIVED THE
NOTICE REQUIRED BY THE LAST SENTENCE OF SECTION 2.1(A));
(IV)
THE LENDERS UNDER THE SENIOR CREDIT FACILITIES ACCELERATE THE
OBLIGATIONS UNDER THE SENIOR CREDIT FACILITIES OR PURSUE ANY REMEDIES OR RIGHTS
IN RESPECT OF THE SENIOR CREDIT FACILITIES PERMITTED BY SECTION 7.01 OF THE
SENIOR CREDIT FACILITIES; OR
(V)
THE LENDERS UNDER THE SENIOR CREDIT FACILITIES DO NOT EXTEND THE
SECOND TEMPORARY WAIVER TERMINATION DATE THROUGH AND INCLUDING AT LEAST
SEPTEMBER 30, 2009 OR OTHERWISE GRANT AN ADDITIONAL WAIVER OF ANY DEFAULT OR
EVENT OF DEFAULT (EACH AS DEFINED IN THE SENIOR CREDIT FACILITIES) UNDER THE
SENIOR CREDIT FACILITIES OR AGREE TO FORBEAR FROM TAKING ANY ENFORCEMENT ACTION
(AS DEFINED IN THE SECOND TEMPORARY WAIVER) THROUGH AND INCLUDING AT LEAST
SEPTEMBER 30, 2009, ON OR BEFORE SEPTEMBER 15, 2009.
1.2
INTERPRETATION.
ALL CAPITALIZED TERMS USED HEREIN SHALL HAVE THE
MEANINGS ASSIGNED THERETO IN THE INDENTURE UNLESS OTHERWISE DEFINED HEREIN.
2.
PROVISIONAL FORBEARANCE AS TO SPECIFIED DEFAULT
2.1
ACKNOWLEDGMENT OF DEFAULT.
2
(A)
THE ISSUER HEREBY ACKNOWLEDGES AND AGREES THAT (I) $11,687,500 OF
INTEREST ON THE NOTES DUE AUGUST 3, 2009 WAS NOT PAID, AND THAT 30 DAYS
THEREAFTER, IF SUCH INTEREST REMAINS UNPAID, IT WOULD CONSTITUTE AN EVENT OF
DEFAULT, (THE "SPECIFIED DEFAULT") AND (II) IMMEDIATELY UPON THE OCCURRENCE OF
THE SPECIFIED DEFAULT, THE TRUSTEE OR HOLDERS OF AT LEAST 30% OF THE PRINCIPAL
AMOUNT OF OUTSTANDING NOTES WOULD BE ENTITLED TO EXERCISE CERTAIN RIGHTS AND
REMEDIES UNDER THE INDENTURE, THE NOTES AND APPLICABLE LAW.
THE ISSUER HEREBY
REPRESENTS AND WARRANTS THAT EXCEPT FOR THE SPECIFIED DEFAULT, NO OTHER DEFAULTS
OR EVENTS OF DEFAULT UNDER THE INDENTURE HAVE OCCURRED AND ARE CONTINUING AS OF
THE DATE HEREOF.
EXCEPT AS EXPRESSLY SET FORTH IN THIS FORBEARANCE AGREEMENT,
THE AGREEMENTS OF THE TRUSTEE AND HOLDERS HEREUNDER TO FORBEAR PROVISIONALLY IN
THE EXERCISE OF THEIR RESPECTIVE RIGHTS AND REMEDIES UNDER THE INDENTURE IN
RESPECT OF THE SPECIFIED DEFAULT UNTIL THE FORBEARANCE TERMINATION DATE DOES NOT
IN ANY MANNER WHATSOEVER LIMIT ANY RIGHT OF ANY OF THE TRUSTEE AND HOLDERS TO
INSIST UPON STRICT COMPLIANCE BY THE ISSUER WITH THIS FORBEARANCE AGREEMENT, THE
INDENTURE OR THE NOTES.
THE HOLDERS, HOWEVER, AGREE TO HAVE THEIR
REPRESENTATIVES INFORM THE TRUSTEE OF THIS FORBEARANCE AGREEMENT AND OF THEIR
DESIRE TO HAVE THE TRUSTEE ACT CONSISTENTLY WITH THE