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Exhibit 10.9
LETTER
WAIVER
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Dated as of
May 30, 2008 |
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Prides Capital Fund I, L.P.,
as purchaser (the “
Purchaser ”) under
the Note and Warrant Purchase
Agreement referred to below
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Ladies and Gentlemen:
We refer to the Note and
Warrant Purchase Agreement dated as of August 31, 2007 (the
“ 2007 Purchase Agreement ”) between the Company
and you. Capitalized terms not otherwise defined in this Letter
Waiver have the same meanings as specified in the 2007 Purchase
Agreement.
Pursuant to that certain Note
and Warrant Purchase Agreement of even date herewith entered into
by the Company and you, the Company intends to (i) issue and
sell to you its 18% Senior Secured Notes due June 30, 2011 and
(ii) issue to you a Warrant to purchase Five-hundred Thousand
shares of Common Stock (the transactions in the foregoing
subclauses (i) and (ii) being referred to herein
collectively as the “ Transactions ”). We hereby
request that you waive compliance with Sections 4.2, 4.5, 4.7, 4.13
and 4.14 of the 2007 Purchase Agreement in respect of the
Transactions.
This Letter Waiver shall
become effective as of the date first above written when, and only
when, the Purchaser shall have received by 10:00 a.m. EST on
May 30, 2008 (x) counterparts of this Letter Waiver
executed by us and you and (y) the consent attached hereto
executed by each of the Company’s domestic
Subsidiaries.
The 2007 Purchase Agreement
and each of the other Note Documents, except to the extent of the
modifications specifically provided for herein, are and shall
continue to be in full force and effect and are hereby in all
respects ratified and confirmed. This Letter Waiver shall be
effective to implement the waiver described herein. The execution,
delivery and effectiveness of this Letter Waiver shall not, except
as expressly provided herein, operate as a waiver of any right,
power or remedy of the Purc
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