ENTITY OF WHICH A MAJORITY OF THE
SHARES OF SECURITIES OR OTHER INTERESTS HAVING ORDINARY VOTING POWER FOR THE
ELECTION OF DIRECTORS OR OTHER GOVERNING BODY (OTHER THAN SECURITIES OR
INTERESTS HAVING SUCH POWER ONLY BY REASON OF THE HAPPENING OF A CONTINGENCY)
ARE AT THE TIME EITHER DIRECTLY OR INDIRECTLY OWNER BY GUARANTOR OR OTHERWISE
BENEFICIALLY OWNED BY GUARANTOR THROUGH ONE OR MORE INTERMEDIARIES, OR GUARANTOR
HAS THE DIRECT POWER, OR INDIRECT POWER THROUGH ONE OR MORE INTERMEDIARIES, TO
VOTE SUCH SHARES OR INTERESTS."
4.
GUARANTOR HEREBY ACKNOWLEDGES AND AGREES THAT, PURSUANT TO
THE TERMS OF SECTION 9(C) OF THE GUARANTY, PRIOR TO THE DATE OF THIS AGREEMENT,
GUARANTOR WAS REQUIRED TO COMPLY WITH CERTAIN FINANCIAL COVENANTS MORE
PARTICULARLY DESCRIBED THEREIN (THE "FINANCIAL COVENANTS").
GUARANTOR, AGENT
AND LENDERS HEREBY AGREE TO WAIVE COMPLIANCE WITH THE FINANCIAL COVENANTS FOR
THE FISCAL YEAR ENDING DECEMBER 31, 2009.
5.
GUARANTOR HEREBY ISSUES, RATIFIES AND CONFIRMS THE
REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED IN THE GUARANTY, AS AMENDED
HEREBY.
GUARANTOR AGREES THAT THIS AGREEMENT IS NOT INTENDED TO AND SHALL NOT
CAUSE A NOVATION WITH RESPECT TO ANY OR ALL OF THE OBLIGATIONS OF GUARANTOR
UNDER THE GUARANTY.
EXCEPT AS EXPRESSLY MODIFIED HEREIN, THE TERMS, PROVISIONS
AND COVENANTS OF THE GUARANTY ARE IN ALL OTHER RESPECTS HEREBY RATIFIED AND
CONFIRMED AND REMAIN IN FULL FORCE AND EFFECT.
6.
GUARANTOR SHALL PAY TO AGENT AT THE TIME THIS AGREEMENT IS
EXECUTED AND DELIVERED ALL FEES, COSTS, CHARGES, TAXES AND OTHER EXPENSES
INCURRED BY AGENT AND ITS COUNSEL IN CONNECTION WITH THIS AGREEMENT.
7.
NOTHING IN THIS AGREEMENT NOR ANY SUBSEQUENT CONDUCT,
ACTIONS, SETTLEMENTS OR ACCOMMODATIONS MADE BY LENDER SHALL CONSTITUTE A WAIVER,
AMENDMENT OR TERMINATION OF THE TERMS, CONDITIONS, RIGHTS OR REMEDIES THAT
LENDER HOLDS UNDER THE FINANCING DOCUMENTS OR IN REGARD TO ANY OTHER DIRECT OR
INDIRECT OBLIGATION OF GUARANTOR TO LENDER. NO FAILURE OR DELAY ON THE PART OF
LENDER IN THE EXERCISE OF ANY RIGHT, POWER OR REMEDY SHALL OPERATE AS A WAIVER
THEREOF OR OF ANY PAST, PRESENT OR FUTURE DEFAULTS OF GUARANTOR, NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR REMEDY OR SUBSEQUENT CONDUCT,
ACTIONS OR ACCOMMODATIONS MADE BY LENDER PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF, OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR REMEDY.
LENDER EXPRESSLY
RESERVES AND PRESERVES ALL OF ITS RIGHTS AND REMEDIES PROVIDED TO IT UNDER THE
FINANCING DOCUMENTS AND AVAILABLE BY LAW OR IN EQUITY.
NO NOTICE TO OR DEMAND
UPON GUARANTOR IN ANY INSTANCE SHALL, IN ITSELF, ENTITLE SUCH PARTY TO ANY OTHER
OR FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES OR CONSTITUTE A
WAIVER OF THE RIGHT OF LENDER TO ANY OTHER OR FURTHER ACTION IN ANY CIRCUMSTANCE
WITHOUT NOTICE OR DEMAND.
GUARANTOR HEREBY ACKNOWLEDGES AND AGREES THAT
GUARANTOR HAS NO OFFSETS, DEFENSES, CLAIMS OR COUNTERCLAIMS AGAINST (I) LENDER,
(II) ANY OBLIGATIONS OWED TO LENDER UNDER THE FINANCING DOCUMENTS OR (III)
LENDER'S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, REPRESENTATIVES,
PREDECESSORS, SUCCESSORS AND ASSIGNS (THE FOREGOING