Common use of PERFORMANCE WAIVER Clause in Contracts

PERFORMANCE WAIVER. The provisions of this Agreement may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company and (A) prior to the Initial Closing, by the Purchasers and (B) after the Initial Closing by the holder or holders of the Securities representing 66-2/3% of the aggregate outstanding Securities. The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of any other provision or as a waiver of the provision itself. 10.2

PERFORMANCE WAIVER. The provisions of this Agreement (including this Article XII) may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company Seller and (A1) prior to the Initial Closing, by the Purchasers RCBA and Purchaser and (B2) after the Initial Closing Closing, by the holder or holders of the Securities representing 66-2/3% a majority of the aggregate outstanding SecuritiesSeries B Cumulative Convertible Preferred Stock. The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of or any other provision or as a waiver of the provision itself. 10.2.

PERFORMANCE WAIVER. The provisions of this Agreement may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given (i) prior to the Closing, by written instrument executed and delivered by the Company and the Purchasers, and (Aii) prior subsequent to the Initial Closing, by the Purchasers written instrument executed and (B) after the Initial Closing delivered by the holder or Company and the holders of the Securities representing 66-2/3(x) 662/3% of the aggregate outstanding Securitiesshares of Preferred Stock, if any, and (y) 662/3% of the Warrant Shares (as defined in Section 6.2.4(a)). The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of any other provision or as a waiver of the provision itself. 10.2.

PERFORMANCE WAIVER. The provisions of this Agreement may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company and (A) prior to the Initial Closing, by the Purchasers and (B) after the Initial Closing by the holder or holders of 66_% of the Common Stock issued in connection with this Agreement (assuming that the Securities representing 66-2/3% or other rights convertible into or exchangeable or exercisable for shares of the aggregate outstanding SecuritiesCommon Stock have been converted, exchanged or exercised). The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in writing in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision or of any other provision or as a waiver of the provision itself. 10.2provision.

PERFORMANCE WAIVER. The provisions of this Agreement may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company and (A) prior to the Initial Closing, by the Purchasers and (B) after the Initial Closing by the holder or holders of the Securities representing 66-2/3% of the aggregate outstanding Securities. The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of any other provision or as a waiver of the provision itself. 10.2.

PERFORMANCE WAIVER. The provisions of this Agreement (including this Section 11.2) may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company Seller and (A1) prior to the Initial Closing, by the Purchasers Purchaser and (B2) after the Initial Closing Closing, by the holder or holders of the Securities representing 66-2/3% a majority of the aggregate outstanding SecuritiesSeries A Preferred Stock and Series C Preferred Stock or, after the Exchange, of the Series B Preferred Stock. The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of or any other provision or as a waiver of the provision itself. 10.2.

PERFORMANCE WAIVER. The provisions of this Agreement (including ------------------- this Section 11.2) may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company Seller and (A1) prior to the Initial Closing, by the Purchasers Purchaser and (B2) after the Initial Closing Closing, by the holder or holders of the Securities representing 66-2/3% a majority of the aggregate outstanding SecuritiesSeries A Preferred Stock and Series C Preferred Stock or, after the Exchange, of the Series B Preferred Stock. The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision of or any other provision or as a waiver of the provision itself. 10.2.

PERFORMANCE WAIVER. The provisions of this Agreement may be modified or amended, and waivers and consents to the performance and observance of the terms hereof may be given by written instrument executed and delivered by the Company and (A) prior to the Initial Closing, by the Purchasers and (B) after the Initial Closing by the holder or holders of the Securities representing 66-2/3662/3% of the aggregate outstanding SecuritiesCommon Stock issued in connection with this Agreement (assuming that the Securities or other rights conver tible into or exchangeable or exercisable for shares of the Common Stock have been converted, exchanged or exercised). The failure at any time to require performance of any provision hereof shall in no way affect the full right to require such performance at any time thereafter (unless performance thereof has been waived in writing in accordance with the terms hereof for all purposes and at all times by the parties to whom the benefit of such performance is to be rendered). The waiver by any party to this Agreement of a breach of any provision hereof shall not be taken or held to be a waiver of any succeeding breach of such provision or of any other provision or as a waiver of the provision itself. 10.2provision.