No Amendment to Charter 3.26.1. Prior to the closing of a Business Combination, the Company covenants and agrees it will not seek to amend or modify its amended and restated certificate of incorporation without the prior approval of its Board of Directors and the affirmative vote of at least 65% of the voting power of the Common Stock.
Amendment or Modification; Waiver No provision of this Agreement may be amended or waived, unless such amendment or waiver is agreed to in writing, signed by the Executive and by a duly authorized officer of the Company. No waiver by any party hereto of any breach by another party hereto of any condition or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar condition or provision at the same time, any prior time or any subsequent time.
Agreement to Forbear (a) For the period (the “Forbearance Period”) beginning as of the date first above written and ending on the earlier to occur of (a) 5:00 p.m., New York time, on May 11, 2009, and (b) termination of this forbearance as provided herein, Agent and Lenders, without waiving, curing or ceasing the continuance of the Existing Events of Default, hereby agree to forbear from the exercise of any of their Rights and Remedies available under the Credit Agreement and the Loan Documents on account of the Existing Events of Default. Neither Agent nor Lenders shall have any obligation to make any Loans, issue, extend or renew, and Borrower shall not request the issuance, extension or renewal of, any Letters of Credit or otherwise extend credit to Borrower under the Credit Agreement during the Forbearance Period. Lenders have considered and will continue to consider during the Forbearance Period, in their sole discretion, whether to honor borrowing requests or requests for issuances of Letters of Credit which shall, in any case, be made pursuant to and in compliance with the Budget (as hereinafter defined). Any past or future Loans to, or issuances of Letters of Credit for the account of, Borrower should not be considered an agreement, express or implied, on the part of Lenders to make any additional Loans or to issue any additional Letters of Credit or an agreement to waive any terms of the Credit Agreement in the future, including, without limitation, the satisfaction of conditions precedent to funding. Agent’s and Lenders’ forbearance provided for herein shall be effective only with respect to the Existing Events of Default and shall terminate and cease to be of force and effect, and Agent and Lenders may exercise all of their respective rights and remedies as may be available under the Credit Agreement and under applicable law, in Agent’s discretion by a written notice to Borrower upon or after the occurrence of any other Default or Event of Default under the Credit Agreement or any Loan Document (other than the Existing Events of Default) or a Default or Event of Default under the terms of this Agreement (individually a “Forbearance Default” and, collectively, the “Forbearance Defaults”).
Agreement to Lock-Up Each Key Holder hereby agrees that it will not, without the prior written consent of the managing underwriter, during the period commencing on the date of the final prospectus relating to the Company’s initial public offering (the “IPO”) and ending on the date specified by the Company and the managing underwriter (such period not to exceed l80 days (which period may be extended upon the request of the managing underwriter, to the extent required by any NASD rules, for an additional period of up to fifteen (15) days if the Company issues or proposes to issue an earnings or other public release within fifteen (15) days of the expiration of the 180-day lockup period), (a) lend, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of Capital Stock held immediately prior to the effectiveness of the registration statement for the IPO or (b) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Capital Stock, whether any such transaction described in clause (a) or (b) above is to be settled by delivery of Capital Stock or other securities, in cash or otherwise. The foregoing provisions of this Section 5 shall not apply to the sale of any shares to an underwriter pursuant to an underwriting agreement, and shall only be applicable to the Key Holders if all officers, directors and holders of more than one percent (1%) of the outstanding Common Stock (after giving effect to the conversion into Common Stock of all outstanding Preferred Stock) enter into similar agreements. The underwriters in connection with the IPO are intended third-party beneficiaries of this Section 5 and shall have the right, power and authority to enforce the provisions hereof as though they were a party hereto. Each Key Holder further agrees to execute such agreements as may be reasonably requested by the underwriters in the IPO that are consistent with this Section 5 or that are necessary to give further effect thereto.
Amendment and Modification; Waiver This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Amendment or Modification This Agreement may be amended or modified from time to time only by a written instrument that is executed by the Member.
Amendment to Agreement The Agreement is hereby amended as follows:
Amendment to Forbearance Agreement As of the date hereof, Section 2(b) of the Forbearance Agreement shall be amended and restated in its entirety to read as follows:
Agreement to Guarantee The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
Entire Agreement; Modification; Waiver This Agreement constitutes the entire agreement between or among the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by all the parties or the applicable parties to be bound by such amendment. No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.
