Common use of WAIVERS AND CONSENT Clause in Contracts

WAIVERS AND CONSENT. (a) Subject to and upon the terms and conditions hereof, (i) the Lender hereby (A) consents to the issuance of the Preferred Stock and to the amendments set forth in Section 3 below and (B) waives its rights to require the Company to redeem all or any portion of the Note pursuant to Section 5(b) of the Note and (ii) the Prencen Entities waive any rights that may be triggered by the New Financing pursuant to Sections 4(k) or 4(l) of the Securities Purchase Agreement, but in the case of each of clauses (i)(A), (i)(B) and (ii) of this Section 2(a), solely to the extent such rights are triggered by the issuance of the Preferred Stock or any shares issuable upon conversion thereof. Each Prencen Entity hereby acknowledges and agrees that none of the New Financing or any conversion of the Preferred Stock by the Prencen Entities into Common Stock that is then held by the Prencen Entities or their Affiliates shall be deemed to constitute (1) a “Fundamental Transaction” (as such term is defined in the Note, the First Series A Warrant, the Second Series A Warrant and the Series B Warrant) under any of the Prencen Finance Documents or (2) a “Change of Control” (as such term is defined in the Note) under any of the Prencen Finance Documents. Each Prencen Entity hereby waives any and all notices relating to the New Financing that it may be entitled to under any Prencen Finance Document. (b) Subject to the terms hereof, each of the Prencen Entities hereby waives

WAIVERS AND CONSENT. (a) Subject to and upon the terms and conditions hereof, the Lenders hereby (i) consent, as provided in Section 15(h) of the Lender hereby (A) consents Notes, to the issuance of the Preferred Stock and to the amendments set forth in Section 3 below and below, (Bii) waives its waive their rights to require the Company to redeem all or any portion of the Note Notes pursuant to Section 5(b) of the Note Notes and (iiiii) the Prencen Entities waive any rights to participate in the purchase of the Preferred Stock that may be triggered by the New Financing pursuant to Sections 4(k) or 4(lSection 4(o) of the Securities Purchase Agreement, but in the case of each of clauses (i)(Ai), (i)(Bii) and (iiiii) of this Section 2(a), solely to the extent such rights are triggered by the issuance of the Preferred Stock or any shares issuable upon conversion thereof. Each Prencen Entity Lender hereby acknowledges and agrees that none of the New Financing or any conversion of the Preferred Stock by the Prencen Entities into Common Stock that is then held by the Prencen Entities or their Affiliates shall be deemed to constitute (1) a “Fundamental Transaction” (as such term is defined in the Note, the First Series A Warrant, the Second Series A Warrant and the Series B WarrantNotes) under any of the Prencen Finance Documents Notes or (2) a “Change of Control” (as such term is defined in the NoteNotes) under any of the Prencen Finance DocumentsNotes. Each Prencen Entity Lender hereby waives any and all notices relating to the New Financing that it may be entitled to under any Prencen Finance Documentof the Notes. (b) Subject to and upon the terms and conditions hereof, each the Lenders hereby waive any default that may exist due to the failure of the Prencen Entities Company to maintain the Required Reserve Amount as required by Section 4(m) of the Securities Purchase Agreement and Section 11 of the Notes; provided that such waiver shall terminate (with no further action on the part of any Person) upon the filing of the Charter Amendment (as defined below). Notwithstanding anything to the contrary provided herein, the waivers set forth in Section 2(a) and this Section 2(b) shall immediately terminate (with no further action on the part of any Person) if (i) within five Business Days following the closing date of the issuance of the Preferred Stock under the Preferred Stock SPA, the Company does not receive the consents of the holders of a majority of the outstanding voting securities of the Company in the form attached hereto as Exhibit B (the "Transaction Stockholder Consent") authorizing the amendment of the Certificate of Incorporation of the Company to increase the authorized number of shares of Common Stock of the Company from 1,000,000,000 shares of Common Stock to 3,000,000,000 shares of Common Stock, (ii) the Company fails to prepare and file with the SEC, as promptly as practicable after the closing of the issuance of the Preferred Stock under the Preferred Stock SPA, but in no event later than the date 20 calendar days after such closing, an information statement (the "Information Statement"), at the expense of the Company, informing the stockholders of the Company's receipt of the Transaction Stockholder Consent, (iii) in the event that the SEC elects to review the Information Statement, the Company does not use its reasonable best efforts to cause the Information Statement to become effective as soon as possible, (iv) in the event that the SEC does not elect to review the Information Statement, the Information Statement is not effective within two months following the date of the closing for the issuance of the Preferred Stock under the Preferred Stock SPA, or (v) the Company fails to file an amendment to its Certificate of Incorporation (the "Charter Amendment") increasing the number of authorized shares from 1,000,000,000 to 3,000,000,000 within five (5) Business Days following the effective date of the Information Statement. (c) Subject to and upon the terms and conditions hereof, (i) the Lenders hereby waiveswaive the right pursuant to Section 2 of the Notes to the Increase by reason of the Filing Default and (ii) the Lenders and the Company agree to extend until January 31, 2008 the date by which the Company is required to file with the SEC its 10-Q for the thirteen and thirty-nine week periods ended November 24, 2007; it being understood that in the event such 10-Q(s) are not filed with the SEC by such date, effective as of such date, the Lenders shall be entitled to receive, subject to the Intercreditor Agreement, the Increase from the date of the Filing Default until such time as the 10-Q is filed with the SEC. (d) Nothing contained herein shall be deemed a waiver of or change to any provision of the Securities Purchase Agreement, the Notes or any of the other Transaction Documents other than as expressly provided in Sections 2(a) and 2(b). For the avoidance of doubt, the Lenders are not waiving compliance with or changing other provisions of such documents, including without limitation, the anti-dilution provisions of Section 7 of the Notes.