Common use of Temporary Waiver Clause in Contracts

Temporary Waiver. The Company has advised the Noteholders that it is not currently and has not been in compliance with Sections 7.1(d) and 11.3 of the Note Purchase Agreement, and as a result of such non-compliance there have occurred and are continuing Events of Default under Section 12(c) of the Note Purchase Agreement (such non-compliance and resulting Events of Default are collectively referred to herein as the "Existing Defaults"). On the Waiver Effective Date (as defined in Section 3 below), the undersigned Noteholders hereby temporarily waive, as of the date hereof and continuing through December 15, 2006, compliance by the Company with, and the Events of Default occurring as a result of the Company's failure to be in compliance with, Sections 7.1(d) and 11.3 of the Note Purchase Agreement, provided, however, this temporary waiver shall only be effective so long as from the date of this Waiver and continuing through December 15, 2006 (the "Waiver Period"), the Company shall be in compliance in all respects with the terms and conditions of Section 5 hereof. The failure of the Company to comply with its agreements in Section 5 of this Waiver shall be deemed an automatic Event of Default under Section 12(c) of the Note Purchase Agreement (as of the date the Existing Defaults originally occurred) and a rescission of the temporary waiver in this Section 1, in each case, without any notice or other action on behalf of the Noteholders. The temporary waiver of the Existing Defaults is limited to the specific instances of failure to comply and the resulting Events of Default which are described above and shall not be deemed a waiver of or consent to any other failure to comply with the terms of Sections 7.1(d) or 11.3 of the Note Purchase Agreement or any other provisions of the Note Purchase Agreement. Such waiver shall not prejudice or constitute a waiver of any right or remedies which the Noteholders may have or be entitled to with respect to any other breach of Sections 7.1(d) or 11.3 or any other provision of the Note Purchase Agreement. The waiver contemplated in this Section 1 shall be effective only for the Existing Defaults and only for the Waiver Period, and such waiver shall not entitle the Company to any future waiver in similar or other circumstances and shall automatically cease to be effective upon the expiration of the Waiver Period, without notice or other action of any kind by the Noteholders. The Noteholders reserve their respective rights, in their discretion, to exercise any or all of their rights and remedies under the Note Purchase Agreement and Notes as a result of the Existing Defaults upon the expiration of the Waiver Period. Without limiting the foregoing, upon the expiration of the Waiver Period, an Event of Default will continue to exist under the Note Purchase Agreement and the Noteholders may, without the need for the expiration of grace periods, if any, in connection with the Existing Defaults (but otherwise in accordance with the terms of the Note Purchase Agreement), accelerate the payment in full of the obligations owed to the Noteholders under the Note Purchase Agreement and Notes, and enforce and exercise any or all of the Noteholders' rights under or in respect of the Note Purchase Agreement and Notes and under applicable law. For avoidance of doubt, it is hereby acknowledged and agreed to by the Company that the addition of the agreements and covenants in Section 5 hereof and their continuance beyond the Waiver Period are not to be construed as an acquiescence or waiver of the Existing Defaults beyond the Waiver Period but are added for additional protection of the Noteholders, and the Noteholders shall retain all their rights and remedies under or in respect of the Note Purchase Agreement and Notes and under applicable law with respect to the Existing Defaults upon the expiration or termination of the Waiver Period.

Temporary Waiver. The Company has advised the Noteholders that it is not currently and has not been in compliance with Sections 7.1(d) and 11.3 of the Note Purchase Agreement, and as a result of such non-compliance there have occurred and are continuing Events of Default under Section 12(c) of the Note Purchase Agreement (such non-compliance and resulting Events of Default are collectively referred to herein as the "Existing Defaults"). On the Waiver Effective Date (as defined in Section 3 below), the undersigned Noteholders hereby temporarily waive, as of the date hereof and continuing through December 15, 2006, compliance by the Company with, and the Events of Default occurring as a result of the Company's failure to be in compliance with, Sections 7.1(d) and 11.3 of the Note Purchase Agreement, provided, however, this temporary waiver shall only be effective so long as from the date of this Waiver and continuing through December 15, 2006 (the "Waiver Period"), the Company shall be in compliance in all respects with the terms and conditions of Section 5 hereof. The failure of the Company to comply with its agreements in Section 5 of this Waiver shall be deemed an automatic Event of Default under Section 12(c) of the Note Purchase Agreement (as of the date the Existing Defaults originally occurred) and a rescission of the temporary waiver in this Section 1, in each case, without any notice or other action on behalf of the Noteholders. The temporary waiver of the Existing Defaults is limited to the specific instances of failure to comply and the resulting Events of Default which are described above and shall not be deemed a waiver of or consent to any other failure to comply with the terms of Sections 7.1(d) or 11.3 of the Note Purchase Agreement or any other provisions of the Note Purchase Agreement. Such waiver shall not prejudice or constitute a waiver of any right or remedies which the Noteholders may have or be entitled to with respect to any other breach of Sections 7.1(d) or 11.3 or any other provision of the Note Purchase Agreement. The waiver contemplated in this Section 1 shall be effective only for the Existing Defaults and only for the Waiver Period, and such waiver shall not entitle the Company to any future waiver in similar or other circumstances and shall automatically cease to be effective upon the expiration of the Waiver Period, without notice or other action of any kind by the Noteholders. The Noteholders reserve their respective rights, in their discretion, to exercise any or all of their rights and remedies under the Note Purchase Agreement and Series A Notes as a result of the Existing Defaults upon the expiration of the Waiver Period. Without limiting the foregoing, upon the expiration of the Waiver Period, an Event of Default will continue to exist under the Note Purchase Agreement and the Noteholders may, without the need for the expiration of grace periods, if any, in connection with the Existing Defaults (but otherwise in accordance with the terms of the Note Purchase Agreement), accelerate the payment in full of the obligations owed to the Noteholders under the Note Purchase Agreement and Series A Notes, and enforce and exercise any or all of the Noteholders' rights under or in respect of the Note Purchase Agreement and Series A Notes and under applicable law. For avoidance of doubt, it is hereby acknowledged and agreed to by the Company that the addition of the agreements and covenants in Section 5 hereof and their continuance beyond the Waiver Period are not to be construed as an acquiescence or waiver of the Existing Defaults beyond the Waiver Period but are added for additional protection of the Noteholders, and the Noteholders shall retain all their rights and remedies under or in respect of the Note Purchase Agreement and Series A Notes and under applicable law with respect to the Existing Defaults upon the expiration or termination of the Waiver Period.