AT ANY TIME THAT THE ABRY DIRECTOR (AS DEFINED IN THE WARRANT
AGREEMENT) IS NOT A MEMBER OF THE BOARD OF DIRECTORS, PROMPTLY FOLLOWING THE
TRANSMISSION THEREOF, COPIES OF ALL FINANCIAL STATEMENTS, PROXY STATEMENTS,
REPORTS AND ANY OTHER GENERAL WRITTEN COMMUNICATIONS WHICH THE PARENT SENDS TO
ITS STOCKHOLDERS GENERALLY OR BOARD OF DIRECTORS AND COPIES OF ALL PROSPECTUSES
AND DISCLOSURE DOCUMENTS, IF ANY, WHICH IT FILES, OR ANY OF ITS OFFICERS OR
MANAGERS FILE WITH RESPECT TO THE COMPANY GROUP, WITH THE SEC OR WITH ANY
SECURITIES EXCHANGE ON WHICH ANY OF ITS SECURITIES ARE THEN LISTED, AND COPIES
OF ALL PRESS RELEASES AND OTHER STATEMENTS MADE AVAILABLE GENERALLY BY THE
PARENT TO THE PUBLIC CONCERNING MATERIAL DEVELOPMENTS IN THE COMPANY GROUP'S
BUSINESSES; AND
(VII)
AS PROMPTLY AS PRACTICABLE, SUCH OTHER INFORMATION AND FINANCIAL
DATA CONCERNING ANY MEMBER OF THE COMPANY GROUP AS ANY
SUCH HOLDER MAY
REASONABLY REQUEST.
Documents required to be delivered pursuant to this Section 4D may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date on which the Company delivers such documents electronically.
Each of
the financial statements referred to in subparagraph (i), (ii) and (iii) shall
be prepared in accordance with GAAP and shall fairly present in all material
respects the financial position of the companies being reported upon as of the
dates and for the periods stated therein, subject in the case of the unaudited
financial statements to changes resulting from normal year-end adjustments."
7.
WAIVER OF EXISTING EVENTS OF DEFAULT.
CERTAIN EVENTS OF DEFAULT
HAVE ARISEN UNDER THE NOTE PURCHASE AGREEMENT AS A RESULT OF THE COMPANY'S
FAILURE TO TIMELY DELIVER (I) COPIES OF THE MONTHLY FINANCIAL STATEMENTS AND
OFFICER CERTIFICATIONS REQUIRED PURSUANT TO AND IN ACCORDANCE WITH SECTION 4D(I)
OF THE NOTE PURCHASE AGREEMENT FOR EACH MONTH FROM AND AFTER JUNE 6, 2007 TO THE
DATE HEREOF, AND (II) COPIES OF THE QUARTERLY FINANCIAL STATEMENTS, COMPLIANCE
CERTIFICATES AND OFFICER CERTIFICATIONS REQUIRED PURSUANT TO AND IN ACCORDANCE
WITH SECTION 4D(II) OF THE NOTE PURCHASE AGREEMENT FOR EACH FISCAL QUARTER FROM
AND AFTER JUNE 6, 2007 TO THE DATE HEREOF (COLLECTIVELY, THE "EXISTING EVENTS OF
DEFAULT").
THE HOLDERS OF THE NOTES HEREBY WAIVE THE EXISTING EVENTS OF
DEFAULT.
THE WAIVER OF THE EXISTING EVENTS OF DEFAULT SHALL RELATE ONLY TO THE
SPECIFIC INSTANCES INVOLVED FOR THE SPECIFIC TIME PERIODS STATED IN CONNECTION
WITH THE EXISTING EVENTS OF DEFAULT AND SHALL NOT APPLY TO ANY OTHER EVENTS OF
DEFAULT WHICH MAY NOW EXIST OR MAY HEREAFTER ARISE UNDER THE NOTE PURCHASE
AGREEMENT.
NOTHING CONTAINED HEREIN SHALL CONSTITUTE A CONSENT TO ANY OTHER
ACTION OF THE SAME OR SIMILAR NATURE THAT THE COMPANY HAS HERETOFORE OR MAY
HEREAFTER TAKE OR OMIT TO TAKE UNDER THE NOTE PURCHASE AGREEMENT.
8.
PAYMENT OF CLOSING FEES.
THE COMPANY SHALL PAY, (I) IN
IMMEDIATELY AVAILABLE FUNDS ON THE DATE HEREOF, A FEE TO AMP OF $115,000 (THE
"SECOND AMENDMENT CLOSING FEE"), AND (II) IN IMMEDIATELY AVAILABLE FUNDS UPON
THE ISSUANCE OF THE