Common use of Waivers and Amendment Clause in Contracts

Waivers and Amendment. Section 8(b) of the Amended Loan Agreement is deleted, and the following paragraph is hereby substituted in its place: So long as the Agent has authority pursuant to Section 11(a), no amendment, modification, termination, or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any event be effective unless the same shall be in writing and signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agent and the Requisite Lenders of the affected Second Amended and Restated Note, do any of the following: (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion of the Requisite Lenders’ Second Amended and Restated Notes, or any other economic terms of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed for any payment of principal of, or interest on, the Requisite Lenders’ Second Amended and Restated Notes or any fees thereunder or hereunder; (iii) change the percentage of the unpaid principal amount of the Requisite Lenders’ Second Amended and Restated Notes which shall be required for the Lenders or any of them to take action hereunder; or (iv) amend, modify or waive any provision of this Section, and provided further that no amendment, waiver, or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights, duties or liabilities of the Agent under this Amended Loan Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (as defined in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all Lenders. Notwithstanding the foregoing, each Lender shall have the right, without the consent of the other Lenders, to agree to any modification or amendment to its Warrants or Amended and Restated Note, but such Lender shall give prompt written notice of the same to the other Lenders and Agent, and the Borrower, on request of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Note.

Waivers and Amendment. (a) Each Purchaser hereby waives compliance by the Company with the obligations imposed by Section 8(b4.13 of the Purchase Agreement regarding such Purchaser’s right to participate in the purchase of the New Debentures, as well as any advance made to the Company prior to the Closing that is either repaid from the proceeds or is given as full or partial consideration by the New Purchasers under the Additional Issuance Agreement. This Waiver shall not effect the rights set forth in Section 4.13 with respect to future financing after the issuance of up to $600,000 Additional Debentures on or before January 31, 2007 (b) Each Purchaser hereby waives the Company’s compliance with the restrictions imposed by Section 4.14 of the Purchase Agreement with respect to the issuance of the New Debentures and New Warrants under the Additional Issuance Agreement, (ii) issuances, for the purposes of financing the Company’s operations of Common Stock, Warrants and Convertible Securities, provided such securities are not Variable Rate Securities and (iii) an issuances of debentures and warrants on the same terms and conditions as the issuance of Debentures and Warrants under the Additional Issuance Agreement. Each Purchaser acknowledges that issuances of additional Debentures and Warrants will not constitute transactions which result in an adjustment of the respective conversion or exercise prices of the Debentures or Warrants. (d) Each Purchaser hereby waives the Company’s compliance with the negative covenants imposed by Sections 7(a), 7(b) and 7(e) of the Amended Loan Agreement is deletedDebenture regarding the Company’s agreement not to create indebtedness and liens and to enter into agreements with respect thereto, and provided such waiver shall not diminish the following paragraph is Company’s obligation to refrain from granting security interests superior to or pari passu to the security interest granted to the holders of the Debentures, except for additional Debentures. (e) The Debentures are hereby substituted in its place: So long as amended by removing the Agent has authority phrase “January 1, 2007, upon a redemption event pursuant to Section 11(a6(a)” in the first sentence of Section 2(a) and replacing such phrase with “January 1, 2007 (provided that interest due on January 1, 2007 and July 1, 2007 upon principal outstanding on such date shall be added to the principal outstanding and shall thereafter bear interest at the rate set forth herein), no amendment, modification, termination, or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is upon a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any redemption event be effective unless the same shall be in writing and signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agent and the Requisite Lenders of the affected Second Amended and Restated Note, do any of the following: (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion of the Requisite Lenders’ Second Amended and Restated Notes, or any other economic terms of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed for any payment of principal of, or interest on, the Requisite Lenders’ Second Amended and Restated Notes or any fees thereunder or hereunder; (iii) change the percentage of the unpaid principal amount of the Requisite Lenders’ Second Amended and Restated Notes which shall be required for the Lenders or any of them to take action hereunder; or (iv) amend, modify or waive any provision of this Section, and provided further that no amendment, waiver, or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights, duties or liabilities of the Agent under this Amended Loan Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a6(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (as defined in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all Lenders. Notwithstanding the foregoing, each Lender shall have the right, without the consent of the other Lenders, to agree to any modification or amendment to its Warrants or Amended and Restated Note, but such Lender shall give prompt written notice of the same to the other Lenders and Agent, and the Borrower, on request of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Note”.

Waivers and Amendment. (a) Each Purchaser hereby waives compliance by the Company with the obligations imposed by Section 8(b4.13 of the Purchase Agreement regarding such Purchaser’s right to participate in the purchase of the New Debenture, as well as any advance made to the Company prior to the Closing that is either repaid from the proceeds or is given as full or partial consideration by the New Purchasers under this Agreement. This Waiver shall not effect the rights set forth in Section 4.13 with respect to future financing after the issuance of up to $600,000 Additional Debentures (including the $288,000 of New Debenture purchased hereunder) on or before January 31, 2007. (b) Each Purchaser hereby waives the Company’s compliance with the restrictions imposed by Section 4.14 of the Purchase Agreement with respect to the issuance of the New Debenture and New Warrants under this Agreement, (ii) issuances, for the purposes of financing the Company’s operations of Common Stock, Warrants and Convertible Securities, provided such securities are not Variable Rate Securities and (iii) an issuances of debentures and warrants on the same terms and conditions as the issuance of Debentures and Warrants under this Agreement. Each Purchaser acknowledges that issuances of additional Debentures and Warrants will not constitute transactions which result in an adjustment of the respective conversion or exercise prices of the Debentures or Warrants. (d) Each Purchaser hereby waives the Company’s compliance with the negative covenants imposed by Sections 7(a), 7(b) and 7(e) of the Amended Loan Agreement is deletedDebenture regarding the Company’s agreement not to create indebtedness and liens and to enter into agreements with respect thereto, and provided such waiver shall not diminish the following paragraph is Company’s obligation to refrain from granting security interests superior to or pari passu to the security interest granted to the holders of the Debentures, except for additional Debenture. (e) The Debentures are hereby substituted in its place: So long as amended by removing the Agent has authority phrase “January 1, 2007, upon a redemption event pursuant to Section 11(a6(a)” in the first sentence of Section 2(a) and replacing such phrase with “January 1, 2007 (provided that interest due on January 1, 2007 and July1, 2007 upon principal outstanding on such date shall be added to the principal outstanding and shall thereafter bear interest at the rate set forth herein), no amendment, modification, termination, or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is upon a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any redemption event be effective unless the same shall be in writing and signed by the Agent, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agent and the Requisite Lenders of the affected Second Amended and Restated Note, do any of the following: (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion of the Requisite Lenders’ Second Amended and Restated Notes, or any other economic terms of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed for any payment of principal of, or interest on, the Requisite Lenders’ Second Amended and Restated Notes or any fees thereunder or hereunder; (iii) change the percentage of the unpaid principal amount of the Requisite Lenders’ Second Amended and Restated Notes which shall be required for the Lenders or any of them to take action hereunder; or (iv) amend, modify or waive any provision of this Section, and provided further that no amendment, waiver, or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights, duties or liabilities of the Agent under this Amended Loan Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a6(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (as defined in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all Lenders. Notwithstanding the foregoing, each Lender shall have the right, without the consent of the other Lenders, to agree to any modification or amendment to its Warrants or Amended and Restated Note, but such Lender shall give prompt written notice of the same to the other Lenders and Agent, and the Borrower, on request of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Note”.

Waivers and Amendment. (a) Each Purchaser hereby waives compliance by the Company with the obligations imposed by Section 8(b) 4.13 of the Amended Loan Purchase Agreement regarding such Purchaser’s right to participate in the purchase of the New Debentures, as well as any advance made to the Company prior to the Closing that is deleted, and either repaid from the following paragraph proceeds or is hereby substituted in its place: So long given as the Agent has authority pursuant to Section 11(a), no amendment, modification, termination, full or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any event be effective unless the same shall be in writing and signed partial consideration by the Agent, and then such waiver or consent New Purchasers under the Additional Issuance Agreement. This Waiver shall be effective only not effect the rights set forth in Section 4.13 with respect to future financing after the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agent and the Requisite Lenders issuance of the affected Second Amended Additional Debentures and Restated Note, do any related Warrants. (b) Each Purchaser hereby waives the Company’s compliance with the restrictions imposed by Section 4.14 of the following: Purchase Agreement with respect to (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion issuance of the Requisite Lenders’ Second Amended New Debentures and Restated NotesNew Warrants under this Additional Issuance Agreement, or any other economic terms and acknowledges that issuances of additional New Debentures and New Warrants will not constitute transactions which result in an adjustment of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed for any payment of principal of, respective conversion or interest on, the Requisite Lenders’ Second Amended and Restated Notes or any fees thereunder or hereunder; (iii) change the percentage exercise prices of the unpaid principal amount of the Requisite Lenders’ Second Amended and Restated Notes which shall be required for the Lenders Debentures or any of them to take action hereunder; or (iv) amend, modify or waive any provision of this Section, and provided further that no amendment, waiver, or consent shall, unless in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights, duties or liabilities of the Agent under this Amended Loan Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (as defined in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all LendersWarrants. Notwithstanding the foregoing, each Lender this Waiver shall not have any effect and the rightCompany expressly acknowledges that its proposed issuance of shares of common stock, without warrants and any future issuances of securities shall continue to be subject to the consent anti-dilution provisions of the other LendersDebentures and Warrants. (c) The “Termination Date” of all common stock purchase warrants held by each Holder (whether Short Term, Long Term or otherwise) (collectively, the “Warrants”) shall be extended to agree to any modification or amendment to its Warrants or Amended and Restated Note, but such Lender shall give prompt written notice the later of the same date set forth therein as the “Termination Date” and December 28, 2012 and the Warrants shall be exercisable immediately. Additionally, the Warrants are hereby amended such that they are exercisable via the “cashless exercise” provisions of Section 2(c) at any time notwithstanding whether or not there then exists and effective registration statement. As a result of the forgoing, the Short and Long Term warrants are hereafter identical and represent a single class of securities and the Company acknowledges that, for purposes of Rule 144, the date that the holding period begins to run for Warrant Shares is the other Lenders and Agentdate that such securities were purchased by the Holder. (d) Any holder may request from the Company, and the BorrowerCompany shall deliver to the Holder within 5 Trading Days, on request an amended and restated Debenture or Warrant reflecting the terms of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Notethis Amendment.

Waivers and Amendment. (a) Each Purchaser hereby waives compliance by the Company with the obligations imposed by Section 8(b) 4.13 of the Amended Loan Purchase Agreement regarding such Purchaser’s right to participate in the purchase of the New Debenture, as well as any advance made to the Company prior to the Closing that is deleted, and either repaid from the following paragraph proceeds or is hereby substituted in its place: So long given as the Agent has authority pursuant to Section 11(a), no amendment, modification, termination, full or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any event be effective unless the same shall be in writing and signed partial consideration by the Agent, and then such waiver or consent New Purchasers under this Agreement. This Waiver shall be effective only not effect the rights set forth in Section 4.13 with respect to future financing. (b) Each Purchaser hereby waives the specific instance and for Company’s compliance with the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed restrictions imposed by the Agent and the Requisite Lenders Section 4.14 of the affected Second Amended and Restated Note, do any of the following: Purchase Agreement with respect to (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion issuance of the Requisite Lenders’ Second Amended New Debentures and Restated NotesNew Warrants under the Additional Issuance Agreement, or any other economic terms of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed the issuance of 240,000 options under the Company’s 2004 Stock Option Plan (“Plan Options”) to Rxxxx Xxxxx, principal of a consulting firm, exercisable for any payment four years at $0.40 per share which vest 40,000 on the first of principal ofeach month commencing March 1, or interest on, the Requisite Lenders’ Second Amended 2007; and Restated Notes or any fees thereunder or hereunder; (iii) change 300,000 Plan Options to Jxxxx Xxxxxxx exercisable for seven years at an exercise price of $0.405. Each Purchaser acknowledges that issuances of additional Debentures, Warrants and the percentage Plan Options will not constitute transactions which result in an adjustment of the unpaid principal amount respective conversion or exercise prices of the Requisite LendersDebentures or Warrants. (c) The Purchasers hereby agree to amend and restate the definition of “Exempt Issuance set forth in Section 1.1 of the Purchase Agreement to read as follows in its entirety: ‘Exempt Issuance’ Second Amended means the issuance of (a) shares of Common Stock or options to employees, officers, directors or bona fide consultants of the Company (including shares of Common Stock issued pursuant to the exercise of such options) pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or securities exercisable or exchangeable for or convertible into shares of Common Stock issued and Restated Notes which shall outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of any such securities, (c) securities issued in lieu of cash payments for engineering or design services, materials, production management or similar services, provided that such securities are not and will not be required for the Lenders or any of them to take action hereunder; registered on a registration statement, or (ivd) amendsecurities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors, modify provided any such issuance shall only be to a Person which is, itself or waive any provision through its subsidiaries, an operating company in a business synergistic with the business of this Section, the Company and provided further that no amendment, waiver, or consent shall, unless in writing and signed by which the Agent Company receives benefits in addition to the Lenders required above to take such action, affect the rights, duties or liabilities investment of the Agent under this Amended Loan Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (as defined in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all Lenders. Notwithstanding the foregoing, each Lender shall have the right, without the consent of the other Lenders, to agree to any modification or amendment to its Warrants or Amended and Restated Notefunds, but such Lender shall give prompt written notice not include a transaction in which the Company is issuing securities primarily for the purpose of the same raising capital or to the other Lenders and Agent, and the Borrower, on request of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Notean entity whose primary business is investing in securities.”

Waivers and Amendment. (a) Each Purchaser hereby waives compliance by the Company with the obligations imposed by Section 8(b) 4.13 of the Amended Loan Purchase Agreement regarding such Purchaser’s right to participate in the purchase of the New Debentures, as well as any advance made to the Company prior to the Closing that is deleted, and either repaid from the following paragraph proceeds or is hereby substituted in its place: So long given as the Agent has authority pursuant to Section 11(a), no amendment, modification, termination, full or waiver of any provision of this Amended Loan Agreement or any Loan Document to which any Pledgor is a party, nor consent to any departure by any Pledgor from this Amended Loan Agreement or any Loan Document to which it is a party, shall in any event be effective unless the same shall be in writing and signed partial consideration by the Agent, and then such waiver or consent New Purchasers under the Additional Issuance Agreement. This Waiver shall be effective only not effect the rights set forth in Section 4.13 with respect to future financing after the specific instance and for the specific purpose for which given; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by the Agent and the Requisite Lenders issuance of the affected Second Amended Additional Debentures and Restated Note, do any related Warrants. (b) Each Purchaser hereby waives the Company’s compliance with the restrictions imposed by Section 4.14 of the following: Purchase Agreement with respect to (i) reduce the principal of, or interest on, such Requisite Lenders’ Second Amended and Restated Notes, or any fees hereunder, or modify any provisions relating to conversion issuance of the Requisite Lenders’ Second Amended New Debentures and Restated NotesNew Warrants under the Additional Issuance Agreement, or any other economic terms of the Requisite Lenders’ Second Amended and Restated Notes; (ii) change any date fixed the issuance of 240,000 options under the Company’s 2004 Stock Option Plan (“Plan Options”) to Rxxxx Xxxxx, principal of a consulting firm, exercisable for any payment four years at $0.40 per share which vest 40,000 on the first of principal ofeach month commencing March 1, or interest on, the Requisite Lenders’ Second Amended 2007; and Restated Notes or any fees thereunder or hereunder; (iii) change 300,000 Plan Options to Jxxxx Xxxxxxx exercisable for seven years at an exercise price of $0.405. Each Purchaser acknowledges that issuances of additional Debentures, Warrants and the percentage Plan Options will not constitute transactions which result in an adjustment of the unpaid principal amount respective conversion or exercise prices of the Requisite Lenders’ Second Amended Debentures or Warrants. (c) The Purchasers hereby agree to amend and Restated Notes which shall be required for restate the Lenders or any definition of them to take action hereunder; or (iv) amend, modify or waive any provision of this Section, and provided further that no amendment, waiver, or consent shall, unless “Exempt Issuance” set forth in writing and signed by the Agent in addition to the Lenders required above to take such action, affect the rights, duties or liabilities Section 1.1 of the Agent under this Amended Loan Purchase Agreement or any of the Loan Documents. After the Agent’s authority terminates pursuant to Section 11(a), neither this Amended Loan Agreement or any Loan Document, nor any term hereof, may be amended, waived or terminated except by a written instrument signed by the Pledgors and the Requisite Lenders (read as defined follows in Section 2.18(b) of Exhibit C hereto), and any such amendment, waiver or termination shall be binding on all Lenders. Notwithstanding the foregoing, each Lender shall have the right, without the consent of the other Lenders, to agree to any modification or amendment to its Warrants or Amended and Restated Note, but such Lender shall give prompt written notice of the same to the other Lenders and Agent, and the Borrower, on request of any other Lender shall enter into the same modification or amendment with such other Lender as to its Warrants or Second Amended and Restated Note.entirety: