Waivers and Agreements. (a) Section 2 of the Registration Rights Agreement required that (among other things), the Company file an Initial Registration Statement (as defined in the Registration Rights Agreement) and obtain effectiveness of the Initial Registration Statement by certain dates. Buyer hereby waives fifty percent (50%) of the Company's obligation to pay any penalties and charges relating to such failures, including Liquidated Damages (as that term is defined in Section 2(c) of the Registration Rights Agreement) that may have accrued through the date hereof as a result of such non-compliance with the filing and effectiveness deadlines (collectively referred to as the "Penalties"); provided that (i) the Company complies with its obligations specified in this Waiver Agreement and (ii) the Debentures are redeemed on or before June 5, 2007 (the "Deadline"); provided, however, that upon the delivery by the Company to the Buyer of significant evidence of a potential financing transaction (the proceeds of which would, at a minimum, repay the outstanding amounts of principal and interest with respect to the Debentures) at any time prior to the Deadline, the Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended Deadline"), and that such consent shall not be unreasonably withheld, conditioned or denied. For the avoidance of doubt, if the Company fails to comply with its obligations set forth in this Waiver Agreement or fails to redeem the Debentures on or before the Deadline, or the Extended Deadline (if applicable), Liquidated Damages will be deemed to have continued to accrue and Buyer will remain entitled to payment of 100% of the Penalties, and all Penalties relating to any period on or after the date hereof. The Company and the Buyer agree that the Company may withdraw its current registration statement on Form SB-2/A (Reg. No. 333-131825) that was filed with the United States Securities and Exchange Commission (the "SEC") on July 18, 2006. The Company shall undertake to file a registration statement covering such number of shares of common stock of the Company equal to one-third of the number of shares of outstanding common stock held by public stockholders, not including any shares held by affiliates of the Company, or the common shares issued or to be issued pursuant to the Secured Debenture (the "Total Registered Shares"), by the Deadline or the Extended Deadline, if applicable. The Company shall use its best efforts to obtain the effectiveness of such registration statement within 60 calendar days after its filing. In the event such registration statement is filed and declared effective for a number of shares less than the total number of Shares that would result if the Buyer converted all of the Debentures eligible for conversion (the "Total Montgomery Shares"), the Company and Buyer agree that, if requexxxx xx xxe Buyer, the Company shall, within sixty (60) calendar days following such request, but in no event earlier than the latter to occur of (i) six (6) months after the initial registration statement has been declared effective and (ii) sixty (60) days after all shares registered have been sold under the initial registration statement, file additional registration statements for the maximum shares that may be registered as advised by the SEC until such time as the Total Montgomery Shares have been registered for resale by the Buyer. (b) No event subject to a waiver or consent herein shall constitute an "Event of Default" as defined in Section 2(a) of the Secured Debenture or in Section 1(b)(v) of the Warrant.
Appears in 1 contract
Samples: Waiver Agreement (Cargo Connection Logistics Holding, Inc.)
Waivers and Agreements. (a) Section 2 On the basis of the Registration Rights Agreement required that (among other things)information set forth in the Memorandum and the representations, warranties and covenants of UCAR, the Company file an Initial Registration Statement (as defined in Borrower and the Registration Rights Agreement) and obtain effectiveness other Credit Parties contained herein, the Required Lenders hereby waive any breach of the Initial Registration Statement by certain dates. Buyer hereby waives fifty percent (50%requirements of Section 5.01(b) of the Company's obligation Credit Agreement insofar as such requirements may have been breached prior to pay March 13, 1998, in connection with the Disclosed Matters, PROVIDED that the foregoing waiver shall not be effective for purposes of any penalties and charges relating additional Borrowing or other extension of credit (other than the Borrowing referred to such failures, including Liquidated Damages in paragraph (as that term is defined in Section 2(cc) of the Registration Rights Agreementbelow) that may have accrued through be requested under the date hereof as a result of such non-compliance with the filing and effectiveness deadlines (collectively referred to as the "Penalties"); provided that (i) the Company complies with its obligations specified in this Waiver Credit Agreement and (ii) the Debentures are redeemed on or before June 5, 2007 (the "Deadline"); provided, however, that shall cease to be effective upon the delivery by the Company to the Buyer of significant evidence of a potential financing transaction (the proceeds of which would, at a minimum, repay the outstanding amounts of principal and interest with respect to the Debentures) at any time prior to the Deadline, the Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended Deadline"), and that such consent shall not be unreasonably withheld, conditioned or denied. For the avoidance of doubt, if the Company fails to comply with its obligations set forth in this Waiver Agreement or fails to redeem the Debentures on or before the Deadline, or the Extended Deadline (if applicable), Liquidated Damages will be deemed to have continued to accrue and Buyer will remain entitled to payment of 100% of the Penalties, and all Penalties relating to any period on or after the date hereof. The Company and the Buyer agree that the Company may withdraw its current registration statement on Form SB-2/A (Reg. No. 333-131825) that was filed with the United States Securities and Exchange Commission (the "SEC") on July 18, 2006. The Company shall undertake to file a registration statement covering such number of shares of common stock of the Company equal to one-third of the number of shares of outstanding common stock held by public stockholders, not including any shares held by affiliates of the Company, or the common shares issued or to be issued pursuant to the Secured Debenture (the "Total Registered Shares"), by the Deadline or the Extended Deadline, if applicable. The Company shall use its best efforts to obtain the effectiveness of such registration statement within 60 calendar days after its filing. In the event such registration statement is filed and declared effective for a number of shares less than the total number of Shares that would result if the Buyer converted all of the Debentures eligible for conversion (the "Total Montgomery Shares"), the Company and Buyer agree that, if requexxxx xx xxe Buyer, the Company shall, within sixty (60) calendar days following such request, but in no event earlier than the latter earliest to occur of (i) six (6) months after the initial registration statement has been declared effective and July 10, 1999, (ii) sixty the first date after the date hereof upon which any Event of Default shall occur and (60iii) days any date on which the Required Lenders shall notify the Borrower in writing that there has been in their judgment a material adverse change in the assets, business, properties, financial condition, results of operations or prospects of UCAR, the Borrower and the Subsidiaries, taken as a whole, since December 31, 1997, after all shares registered have been sold under giving effect as of December 31, 1997, to the initial registration statement, file additional registration statements non-recurring charge of $340,000,000 in respect of the Disclosed Matters and the related disclosure (a copy of which is attached as Exhibit A hereto) to be included in the Borrower's Annual Report on Form 10-K to the Securities and Exchange Commission for the maximum shares that may be registered as advised by the SEC until such time as the Total Montgomery Shares have been registered for resale by the Buyerfiscal year ended December 31, 1997.
(b) No event On the basis of the information set forth in the Memorandum and the representations, warranties and covenants of UCAR, the Borrower and the other Credit Parties contained herein, the Required Lenders hereby waive the requirement of Section 5.04(a) of the Credit Agreement that the financial statements for the fiscal year ended December 31, 1997, be delivered within 90 days after such date, PROVIDED that such financial statements are delivered promptly after the effectiveness of this Waiver and are not qualified in any material respect.
(c) On the basis of the information set forth in the Memorandum and the representations, warranties and covenants of UCAR, the Borrower and the other Credit Parties contained herein, the Required Lenders hereby agree, without waiving any other right under or provision of the Credit Agreement, and without being deemed to have agreed that no material adverse change has occurred or that no Material Adverse Effect exists or could reasonably be expected to occur as a result of the Disclosed Matters, to permit the funding of Revolving Borrowings on Monday, April 13, 1998, in an aggregate amount not to exceed $35,000,000, subject only to the satisfaction on such date of the conditions to borrowing set forth in Section 4.01 of the Credit Agreement for Revolving Borrowings, except insofar as satisfaction of any such condition is not satisfied solely as a waiver result of the Disclosed Matters and except that the condition set forth in Section 4.01(d) of the Credit Agreement shall be deemed to have been satisfied if such Revolving Borrowings are permitted to be incurred under the Senior Subordinated Indenture and the conditions set forth in clauses (ii) and (iii) of such Section 4.01(d) are satisfied.
(d) In connection with and as an inducement to the Required Lenders to provide this Waiver, each of UCAR, the Borrower and the Credit Parties agrees within 30 days after the date hereof (i) to grant to the Collateral Agent, for the ratable benefit of the Lenders and the other Secured Parties, as security for the Secured Obligations, first priority perfected security interests in substantially all the assets of UCAR, the Borrower and the domestic Subsidiaries and (ii) to grant, or consent herein to cause each applicable foreign Subsidiary to grant, to the extent legally permitted, to each Local Facility Lender to which such person is legally permitted to grant collateral (or to the applicable collateral agent for the benefit of any such Local Facility Lender), first priority perfected security interests in substantially all the assets of the foreign Subsidiaries. Each document delivered pursuant to this paragraph shall constitute an a Loan Document and a Security Document for all purposes of the Credit Agreement and shall in the case of each document delivered pursuant to clause (ii) in addition constitute a Local Facility Loan Document for all purposes of the Credit Agreement and a Loan Document and a Security Document for all purposes of each Local Facility Credit Agreement the Lenders under which benefit from the rights granted under such documents.
(e) Effective immediately upon the effectiveness of this Waiver:
(i) the definition of "Event EBITDA" contained in the Credit Agreement shall be amended by adding at the end thereof the following phrase: "and, solely for purposes of Default" Sections 2.05 and 2.06, MINUS, without duplication, the aggregate amount for such period of (A) all costs actually paid or otherwise realized in such period in respect of the Disclosed Matters (as defined in Section 2(a) the Waiver dated as of April 10, 1998, under this Agreement), whether paid or realized in the form of cash payments, rebates or discounts or by means of other arrangements for providing refunds or other similar payment or pricing adjustments or for providing any goods or services at a lower cost than would apply if not paid or realized in respect of the Secured Debenture Disclosed Matters, or in Section 1(b)(v) under any agreement or undertaking to provide any of the Warrant.foregoing, and (B) any reduction of any reserve or charge taken in connection with the Disclosed Matters arising in connection with an actual cost"; and
Appears in 1 contract
Samples: Waiver (Ucar International Inc)
Waivers and Agreements. (a) Section 2 of the Registration Rights Agreement required that (among other things), the Company file an Initial Registration Statement (as defined in the Registration Rights Agreement) and obtain effectiveness of the Initial Registration Statement by certain dates. Buyer hereby waives fifty percent (50%2.2(d) of the Company's obligation Credit Agreement required the Borrower to pay any penalties and charges relating make a $5,000,000 Reduction Installment on June 28, 2002. The Borrower failed to make such failures, including Liquidated Damages (as that term is defined in Section 2(c) of the Registration Rights Agreement) that may have accrued through the date hereof as Reduction Installment. As a result of such non-compliance with noncompliance, an Event of Default has occurred and is continuing under the filing and effectiveness deadlines (collectively referred Credit Agreement. At the Borrower's request, the Lenders agree to as the "Penalties"); provided that (i) the Company complies with its obligations specified in this Waiver Agreement and (ii) the Debentures are redeemed on or before June 5waive such Event of Default, 2007 (the "Deadline"); provided, however, that upon the delivery by the Company subject to the Buyer of significant evidence of a potential financing transaction (the proceeds of which would, at a minimum, repay the outstanding amounts of principal terms and interest with respect to the Debentures) at any time prior to the Deadline, the Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended Deadline"), and that such consent shall not be unreasonably withheld, conditioned or denied. For the avoidance of doubt, if the Company fails to comply with its obligations conditions set forth in this Waiver Agreement or fails to redeem the Debentures on or before the Deadline, or the Extended Deadline (if applicable), Liquidated Damages will be deemed to have continued to accrue and Buyer will remain entitled to payment of 100% of the Penalties, and all Penalties relating to any period on or after the date hereof. The Company and the Buyer agree that the Company may withdraw its current registration statement on Form SB-2/A (Reg. No. 333-131825) that was filed with the United States Securities and Exchange Commission (the "SEC") on July 18, 2006. The Company shall undertake to file a registration statement covering such number of shares of common stock of the Company equal to one-third of the number of shares of outstanding common stock held by public stockholders, not including any shares held by affiliates of the Company, or the common shares issued or to be issued pursuant to the Secured Debenture (the "Total Registered Shares"), by the Deadline or the Extended Deadline, if applicable. The Company shall use its best efforts to obtain the effectiveness of such registration statement within 60 calendar days after its filing. In the event such registration statement is filed and declared effective for a number of shares less than the total number of Shares that would result if the Buyer converted all of the Debentures eligible for conversion (the "Total Montgomery Shares"), the Company and Buyer agree that, if requexxxx xx xxe Buyer, the Company shall, within sixty (60) calendar days following such request, but in no event earlier than the latter to occur of (i) six (6) months after the initial registration statement has been declared effective and (ii) sixty (60) days after all shares registered have been sold under the initial registration statement, file additional registration statements for the maximum shares that may be registered as advised by the SEC until such time as the Total Montgomery Shares have been registered for resale by the Buyerherein.
(b) No event Section 7(A) of the Warrant Agreements provides that no later than 45 days following the Issue Date (as defined therein), the Borrower will file a registration statement with the Securities and Exchange Commission to effect the registration under the Securities Act of 1933, as amended, of the shares of common stock issued or issuable upon the exercise of such Warrant Agreements and will cause such registration statement to become effective (the "REGISTRATION EFFECTIVE DATE") as a shelf registration no later than 90 days after the Issue Date (as defined therein). As part of the Second Amendment and with respect to the Warrant Agreements dated as of January 28, 2002, the Lenders agreed to provide an additional 30 days after each such compliance date, subject to the terms and conditions set forth in the Second Amendment. Pursuant to a waiver or consent herein shall constitute letter agreement dated April 22, 2002, the Registration Date was again extended to June 10, 2002. The Borrower failed to cause its registration statement to become effective by such date, resulting in an "Event of Default under the Credit Agreement. At the Borrower's request, the Lenders agree to waive such Event of Default" , subject to the terms and conditions set forth herein and PROVIDED THAT that Borrower (i) files its amended registration statement for the Warrant Agreements on a date not later than February 4, 2003 and (ii) causes such registration statement to become effective as defined a shelf registration on a date not later than March 31, 2003.
(c) The foregoing waivers and agreements are given in Section 2(a) this instance only. The foregoing waivers and agreements shall not be construed as a waiver of or consent to any violation of, or deviation from, any other term or condition of the Secured Debenture Credit Agreement or in Section 1(b)(v) any other Loan Document, nor shall such waivers or agreements be construed to evidence the willingness of the WarrantAgent or the Lenders to give any other or additional waiver or agreement, whether in similar or different circumstances.
Appears in 1 contract
Waivers and Agreements. (a) Section 2 The Administrative Agent and the Lenders hereby waive the provisions of the Registration Rights Agreement required that (among other things)Sections 9.1, the Company file an Initial Registration Statement (as defined in the Registration Rights Agreement) 9.3 and obtain effectiveness 9.5 and any Default or Event of the Initial Registration Statement by certain dates. Buyer hereby waives fifty percent (50%) of the Company's obligation to pay any penalties and charges relating to such failures, including Liquidated Damages (as that term is defined in Section 2(c) of the Registration Rights Agreement) that Default which shall or may have accrued through the date hereof occurred as a result of such non-compliance with therewith solely for the filing Waiver Calculation Period; PROVIDED, that:
(i) Borrower's EBITDA shall not be less than (A) $6,000,000 for the fiscal quarter ending September 30, 1999 and effectiveness deadlines (collectively referred B) $7,500,000 for the fiscal quarter ending December 31, 1999;
(ii) the waivers set forth herein shall terminate and an Event of Default shall be deemed to as have occurred and be continuing under the "Penalties"); provided that Credit Agreement on the earlier to occur of (i) the Company complies date which is no later than five (5) Business Days after the date on which the Agreement and Plan of Merger dated as of October 5, 1999 by and among UICI, UICI Acquisition Co. and the Borrower is terminated or (ii) February 10, 2000 if the transactions contemplated by the Merger Agreement shall have failed to be consummated on or prior to such date (the "Waiver Termination Date"); PROVIDED FURTHER, that nothing set forth herein shall be deemed to be a consent to or approval of the Merger, which Merger is prohibited by the terms and conditions set forth in the Credit Agreement;
(iii) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the dividends otherwise permitted pursuant to Section 10.7(d) of the Credit Agreement;
(iv) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the investments otherwise permitted pursuant to Section 10.4(g); and
(v) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not permit Capital Expenditures to exceed $8,000,000 in the aggregate for any period of four (4) consecutive fiscal quarters ending during such period.
(b) The Administrative Agent and the Lenders hereby acknowledge and agree that the calculation of Net Income for the purposes of calculating the minimum EBITDA required pursuant to clause (a)(i) above shall be increased by (i) $5,658,000 in connection with its obligations specified a non-recurring non-cash charge taken during the fiscal quarter ending September 30, 1999 with respect to reserves established for litigation claims in this Waiver accordance with FASB #5, (ii) $973,000 in connection with a non-recurring cash gain taken during the fiscal quarter ending September 30, 1999 and (iii) approximately $1,000,000 to 2,000,000 in connection with a non-recurring cash and non-cash restructuring charge to be taken during the fiscal quarter ending December 31, 1999.
(c) The Administrative Agent and the Lenders hereby acknowledge and agree that the Borrower's failure to comply with Sections 9.1, 9.3 and 9.5 as described and as limited in paragraph (a) above does not in and of itself constitute a material adverse change in the properties, businesses, results of operations, or financial or other condition of the Credit Parties taken as a whole.
(d) The Administrative Agent and the Lenders hereby waive any Default or Event of Default which shall or may have occurred as a result of the non-compliance by the Borrower with Section 10.1(c) of the Credit Agreement solely by reason of the Borrower's December 1998 renewal of the following two Letters of Credit with The Fifth Third Bank of Columbus: (i) Irrevocable Standby Letter of Credit dated April 14, 1995 in the amount of $25,000 for the benefit of the State of South Carolina Budget and (ii) Irrevocable Standby Letter of Credit dated September 9, 1994 in the Debentures are redeemed on or before June 5, 2007 amount of $490,696.29 for the benefit of the State of South Carolina Budget.
(e) The parties hereto hereby acknowledge and agree that the "Deadline"); providedAmendment Period" (as defined and set forth in the Second Amendment) has not yet terminated and, howevernotwithstanding any of the terms and provisions of such definition, that upon the delivery by the Company to the Buyer of significant evidence of a potential financing transaction (the proceeds of which would, at a minimum, repay the outstanding amounts of principal and interest with respect to the Debentures) shall not terminate at any time prior to the Deadline, the Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended Deadline"), and that such consent shall not be unreasonably withheld, conditioned or denied. For the avoidance of doubt, if the Company fails to comply with its obligations set forth in this Waiver Agreement or fails to redeem the Debentures on or before the Deadline, or the Extended Deadline (if applicable), Liquidated Damages will be deemed to have continued to accrue and Buyer will remain entitled to payment of 100% of the Penalties, and all Penalties relating to any period on or after the date hereof. The Company and the Buyer agree that the Company may withdraw its current registration statement on Form SB-2/A (Reg. No. 333-131825) that was filed with the United States Securities and Exchange Commission (the "SEC") on July 18, 2006. The Company shall undertake to file a registration statement covering such number of shares of common stock of the Company equal to one-third of the number of shares of outstanding common stock held by public stockholders, not including any shares held by affiliates of the Company, or the common shares issued or to be issued pursuant to the Secured Debenture (the "Total Registered Shares"), by the Deadline or the Extended Deadline, if applicable. The Company shall use its best efforts to obtain the effectiveness of such registration statement within 60 calendar days after its filing. In the event such registration statement is filed and declared effective for a number of shares less than the total number of Shares that would result if the Buyer converted all of the Debentures eligible for conversion (the "Total Montgomery Shares"), the Company and Buyer agree that, if requexxxx xx xxe Buyer, the Company shall, within sixty (60) calendar days following such request, but in no event earlier than the latter to occur of (i) six (6) months after the initial registration statement has been declared effective and (ii) sixty (60) days after all shares registered have been sold under the initial registration statement, file additional registration statements for the maximum shares that may be registered as advised by the SEC until such time as the Total Montgomery Shares have been registered for resale by the BuyerTermination Date.
(b) No event subject to a waiver or consent herein shall constitute an "Event of Default" as defined in Section 2(a) of the Secured Debenture or in Section 1(b)(v) of the Warrant.
Appears in 1 contract
Waivers and Agreements. (a) Section 2 The Administrative Agent and the Lenders hereby waive the provisions of the Registration Rights Agreement required that (among other things)Sections 9.1, the Company file an Initial Registration Statement (as defined in the Registration Rights Agreement) 9.3 and obtain effectiveness 9.5 and any Default or Event of the Initial Registration Statement by certain dates. Buyer hereby waives fifty percent (50%) of the Company's obligation to pay any penalties and charges relating to such failures, including Liquidated Damages (as that term is defined in Section 2(c) of the Registration Rights Agreement) that Default which shall or may have accrued through the date hereof occurred as a result of such non-compliance with therewith solely for the filing Waiver Calculation Period; provided, that:
(i) Borrower's EBITDA shall not be less than (A) $6,000,000 for the fiscal quarter ending September 30, 1999 and effectiveness deadlines (collectively referred B) $7,500,000 for the fiscal quarter ending December 31, 1999;
(ii) the waivers set forth herein shall terminate and an Event of Default shall be deemed to as have occurred and be continuing under the "Penalties"); provided that Credit Agreement on the earlier to occur of (i) the Company complies date which is no later than five (5) Business Days after the date on which the Agreement and Plan of Merger dated as of October 5, 1999 by and among UICI, UICI Acquisition Co. and the Borrower (the "Merger Agreement") is terminated or (ii) February 10, 2000 if the transactions contemplated by the Merger Agreement shall have failed to be consummated on or prior to such date (the "Waiver Termination Date"); PROVIDED FURTHER, that nothing set forth herein shall be deemed to be a consent to or approval of the Merger, which Merger is prohibited by the terms and conditions set forth in the Credit Agreement;
(iii) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the dividends otherwise permitted pursuant to Section 10.7(d) of the Credit Agreement;
(iv) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not be permitted to make the investments otherwise permitted pursuant to Section 10.4(g); and
(v) during the period from and after the date hereof to and including the Waiver Termination Date, the Borrower shall not permit Capital Expenditures to exceed $8,000,000 in the aggregate for any period of four (4) consecutive fiscal quarters ending during such period.
(b) The Administrative Agent and the Lenders hereby acknowledge and agree that the calculation of Net Income for the purposes of calculating the minimum EBITDA required pursuant to clause (a)(i) above shall be increased by (i) $5,658,000 in connection with its obligations specified a non-recurring non-cash charge taken during the fiscal quarter ending September 30, 1999 with respect to reserves established for litigation claims in this Waiver accordance with FASB #5, (ii) $973,000 in connection with a non-recurring cash gain taken during the fiscal quarter ending September 30, 1999 and (iii) approximately $1,000,000 to 2,000,000 in connection with a non-recurring cash and non-cash restructuring charge to be taken during the fiscal quarter ending December 31, 1999.
(c) The Administrative Agent and the Lenders hereby acknowledge and agree that the Borrower's failure to comply with Sections 9.1, 9.3 and 9.5 as described and as limited in paragraph (a) above does not in and of itself constitute a material adverse change in the properties, businesses, results of operations, or financial or other condition of the Credit Parties taken as a whole.
(d) The Administrative Agent and the Lenders hereby waive any Default or Event of Default which shall or may have occurred as a result of the non-compliance by the Borrower with Section 10.1(c) of the Credit Agreement solely by reason of the Borrower's December 1998 renewal of the following two Letters of Credit with The Fifth Third Bank of Columbus: (i) Irrevocable Standby Letter of Credit dated April 14, 1995 in the amount of $25,000 for the benefit of the State of South Carolina Budget and (ii) Irrevocable Standby Letter of Credit dated September 9, 1994 in the Debentures are redeemed on or before June 5, 2007 amount of $490,696.29 for the benefit of the State of South Carolina Budget.
(e) The parties hereto hereby acknowledge and agree that the "Deadline"); providedAmendment Period" (as defined and set forth in the Second Amendment) has not yet terminated and, howevernotwithstanding any of the terms and provisions of such definition, that upon the delivery by the Company to the Buyer of significant evidence of a potential financing transaction (the proceeds of which would, at a minimum, repay the outstanding amounts of principal and interest with respect to the Debentures) shall not terminate at any time prior to the Deadline, the Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended Deadline"), and that such consent shall not be unreasonably withheld, conditioned or denied. For the avoidance of doubt, if the Company fails to comply with its obligations set forth in this Waiver Agreement or fails to redeem the Debentures on or before the Deadline, or the Extended Deadline (if applicable), Liquidated Damages will be deemed to have continued to accrue and Buyer will remain entitled to payment of 100% of the Penalties, and all Penalties relating to any period on or after the date hereof. The Company and the Buyer agree that the Company may withdraw its current registration statement on Form SB-2/A (Reg. No. 333-131825) that was filed with the United States Securities and Exchange Commission (the "SEC") on July 18, 2006. The Company shall undertake to file a registration statement covering such number of shares of common stock of the Company equal to one-third of the number of shares of outstanding common stock held by public stockholders, not including any shares held by affiliates of the Company, or the common shares issued or to be issued pursuant to the Secured Debenture (the "Total Registered Shares"), by the Deadline or the Extended Deadline, if applicable. The Company shall use its best efforts to obtain the effectiveness of such registration statement within 60 calendar days after its filing. In the event such registration statement is filed and declared effective for a number of shares less than the total number of Shares that would result if the Buyer converted all of the Debentures eligible for conversion (the "Total Montgomery Shares"), the Company and Buyer agree that, if requexxxx xx xxe Buyer, the Company shall, within sixty (60) calendar days following such request, but in no event earlier than the latter to occur of (i) six (6) months after the initial registration statement has been declared effective and (ii) sixty (60) days after all shares registered have been sold under the initial registration statement, file additional registration statements for the maximum shares that may be registered as advised by the SEC until such time as the Total Montgomery Shares have been registered for resale by the BuyerTermination Date.
(b) No event subject to a waiver or consent herein shall constitute an "Event of Default" as defined in Section 2(a) of the Secured Debenture or in Section 1(b)(v) of the Warrant.
Appears in 1 contract
