WAIVER AND AGREEMENT
THIS
WAIVER AND AGREEMENT
(this
“Waiver”),
is
entered into by and between TXP
CORPORATION,
a
Nevada corporation (the “Company”),
and
YA
GLOBAL INVESTMENTS, LP (“YA
Global”)
on
November 18, 2008.
WHEREAS:
A. The
Company and YA Global entered into a Securities Purchase Agreement, dated May
29, 2008 which was amended on October 15, 2008 pursuant to Amendment No. 1
thereto (as amended, the “Securities
Purchase Agreement”);
B. Pursuant
to Section 4(s) of the Securities Purchase Agreement, if the Company does not
meet certain Milestones (as defined in the Securities Purchase Agreement) by
November 15, 2008, YA Global has the right to require the Company to sell the
business or the assets of the iPhotonics business unit before January 31,
2009;
C. As
of the
date hereof, the Company has not met the Milestones; and
D. The
Company has requested and YA Global has agreed, subject to the terms and
conditions hereof, to waive its right to require the Company to sell the
business or the assets of the iPhotonics business;
NOW,
THEREFORE,
in
consideration of the promises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the Company and YA Global hereby agree as
follows:
1. WAIVER
OF CERTAIN RIGHTS; ACKNOWLEDGMENT.
Notwithstanding anything to the contrary set forth in any Transaction Document
(as defined in the Securities Purchase Agreement), YA Global hereby (i) waives
until December 15, 2008 its right to require the Company to sell the business
or
the assets of the iPhotonics business and (ii) acknowledges that if a Milestone
is met by December 15, 2008, YA Global will not have the right to require the
Company to sell the business or the assets of iPhotonics. For the avoidance
of
doubt, YA Global is not waiving any other rights or remedies it may have under
the Transaction Documents with respect to the Company’s failure to meet a
Milestone or otherwise.
2. EVENT
OF DEFAULT.
The
Company acknowledges that its failure to achieve a Milestone by December 15,
2008 will be an Event of Default (as defined in the Transaction
Documents).
3. EFFECT
ON OTHER TERMS.
Other
than as set forth in this Waiver, no changes, modification or waivers to any
of
the Transaction Documents are intended or implied and in all other respects
the
Transaction Documents are hereby ratified, restated and confirmed by all parties
hereto as of the date hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF,
the
parties have caused this Waiver to be duly executed as of day and year first
above written.
| TXP CORPORATION | ||
| By: |
/s/
R. Xxxxxxxxxxx Xxxx
|
|
|
Name: R.
Xxxxxxxxxxx Xxxx
|
||
|
Title: Chief
Financial Officer
|
||
| AGREED AND ACKNOWLEDGED: | ||
| YA GLOBAL INVESTMENTS, L.P. | ||
| By: |
Yorkville
Advisors, LLC
|
|
|
|
it
Investment Manager
|
|
|
By:
|
/s/
Xxxx Xxxxx
|
|
|
Name:
Xxxx Xxxxx
|
||
|
Title:
Senior Managing Director
|
