Common use of Amendment; Waivers, etc Clause in Contracts

Amendment; Waivers, etc. (a) Neither this Note, any Interest Note or any Other Note nor the Security Agreement nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the Majority Holders, provided that no such change, waiver, discharge or termination shall, without the consent of the Holder and the holders of the Other Notes affected thereby (i) extend the scheduled final maturity of this Note, any Interest Note or any Other Note, or reduce the rate or extend the time of payment of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) hereon or thereon or reduce the principal amount hereof or thereof or the Redemption Price, the Redemption Event Redemption Price, the Share Limitation Redemption Price or the Repurchase Price, (ii) release the collateral or reduce the amount of collateral required to be deposited or maintained by the Company pursuant to the Security Agreement except as expressly provided in the Security Agreement, (iii) amend, modify or waive any provision of this Section 7.3, (iv) reduce any percentage specified in, or otherwise modify, the definition of Majority Holders or (v) except as provided in this Note, change the method of calculating the Conversion Price in a manner adverse to the Holder. (b) Notwithstanding any other provision of this Note or the Note Purchase Agreement, in addition to the requirements of Section 7.3(a), any amendment of (x) the second or third sentence of Section 2.1, (y) the definition of the term Aggregated Person or (z) this Section 7.3(b) shall require approval by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock, present in person or represented by proxy at a duly convened meeting of stockholders of the Company, and entitled to vote or the consent thereto in writing by holders of a majority of the outstanding shares of Common Stock, and the stockholders of the Company are hereby expressly made third party beneficiaries of this Section 7.3(b).

Amendment; Waivers, etc. (a) Neither The provisions of Articles I, III and IV of this Note, any Interest Note or any Other Note nor the Security Agreement nor any terms hereof or thereof may be changedamended, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the Majority Holders, provided that no such change, waiver, discharge or termination shall, without the consent of the Holder and the holders of the Other Notes affected thereby (i) extend the scheduled final maturity of this Note, Company and any Interest Note or Participant may take any Other Noteaction herein prohibited, or reduce the rate or extend the time of payment of interest (other than as a result of waiving the applicability of omit to perform any post-default increase in interest rates) hereon or thereon or reduce the principal amount hereof or thereof or the Redemption Price, the Redemption Event Redemption Price, the Share Limitation Redemption Price or the Repurchase Price, (ii) release the collateral or reduce the amount of collateral act herein required to be deposited performed by it, if and only if any such amendment, action or maintained by the Company pursuant omission to the Security Agreement except as expressly provided in the Security Agreementact, (iii) amend, modify or waive any provision of this Section 7.3, (iv) reduce any percentage specified in, or otherwise modify, the definition of Majority Holders or (v) except as provided in this Note, change the method of calculating the Conversion Price in a manner adverse to the Holder. (b) Notwithstanding any other provision of this Note or the Note Purchase Agreement, in addition to the requirements of Section 7.3(a), any amendment of (x) the second or third sentence of Section 2.1, (y) the definition of the term Aggregated Person or (z) this Section 7.3(b) shall require approval by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock, present in person or represented by proxy at a duly convened meeting of stockholders of the Company, and entitled to vote or the consent thereto in writing has been approved by holders of a majority of the outstanding shares Equity Securities held by Participants. The provisions of Common StockArticle II of this Agreement may be amended, and the stockholders Company and any Sponsor may take any action herein prohibited, or omit to perform any act herein required to be performed by it, if and only if any such amendment, action or omission to act, has been approved by the Company, the Charlesbank Investor and the GTCR Investor; provided that the approval of the Company are hereby expressly made third party beneficiaries Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the amendment, action or omission to act with respect to any Section of this Agreement for which such Sponsor’s rights or obligations have been terminated pursuant to Section 7.3(b)4.1. Notwithstanding anything herein to the contrary, this Agreement may not be amended in a manner that adversely and disproportionately affects the rights or obligations of any Participant relative to the rights or obligations of all similarly situated Participants, in each case without the consent of such Participant. The failure of any party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms. Any Participant may waive (in writing) the benefit of any provision of this Agreement with respect to itself for any purpose. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Participant granting such waiver in any other respect or at any other time.

Amendment; Waivers, etc. (a) Neither No amendment, modification or discharge of this NoteAgreement, any Interest Note and no waiver hereunder, shall be valid or any Other Note nor binding unless set forth in writing and duly executed by the Security Agreement nor any terms hereof or thereof may be changedparty against whom enforcement of the amendment, waived, discharged or terminated unless such change, waivermodification, discharge or termination waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing signed and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity. o Expenses. All costs, fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, whether or not consummated, shall be paid by the Majority Holdersparty incurring such cost or expense. o Governing Law, provided that no such changeetc. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, waiverINCLUDING AS TO VALIDITY, discharge or termination shallINTERPRETATION AND EFFECT, without the consent of the Holder and the holders of the Other Notes affected thereby BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS, TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. EACH OF THE PARTIES HERETO AGREES THAT THIS AGREEMENT INVOLVES AT LEAST U.S. $100,000.00 AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO IN EXPRESS RELIANCE UPON 6 Del. C. § 2708. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES (i) extend TO BE SUBJECT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE FEDERAL COURTS SITTING IN THE STATE OF DELAWARE, AND (ii)(A) TO THE EXTENT SUCH PARTY IS NOT OTHERWISE SUBJECT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE, TO APPOINT AND MAINTAIN AN AGENT IN THE STATE OF DELAWARE AS SUCH PARTY’S AGENT FOR ACCEPTANCE OF LEGAL PROCESS AND TO NOTIFY THE OTHER PARTIES OF THE NAME AND ADDRESS OF SUCH AGENT, AND (B) THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE OF PROCESS MAY ALSO BE MADE ON SUCH PARTY BY PREPAID CERTIFIED MAIL WITH A VALIDATED PROOF OF MAILING RECEIPT CONSTITUTING EVIDENCE OF VALID SERVICE, AND THAT SERVICE MADE PURSUANT TO (ii)(A) OR (B) ABOVE SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, HAVE THE SAME LEGAL FORCE AND EFFECT AS IF SERVED UPON SUCH PARTY PERSONALLY WITHIN THE STATE OF DELAWARE. The Company, Holdings and the scheduled final maturity Selling Stockholders hereby irrevocably submit to the jurisdiction of the Court of Chancery of the State of Delaware (or, solely to the extent that the Court of Chancery lacks jurisdiction, each other state court of the State of Delaware and the federal courts of the United States of America located in the State of Delaware) solely in respect of the interpretation and enforcement of the provisions of this Note, any Interest Note or any Other Note, or reduce Agreement and of the rate or extend the time of payment of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) hereon or thereon or reduce the principal amount hereof or thereof or the Redemption Price, the Redemption Event Redemption Price, the Share Limitation Redemption Price or the Repurchase Price, (ii) release the collateral or reduce the amount of collateral required documents referred to be deposited or maintained by the Company pursuant to the Security Agreement except as expressly provided in the Security Agreement, (iii) amend, modify or waive any provision of this Section 7.3, (iv) reduce any percentage specified in, or otherwise modify, the definition of Majority Holders or (v) except as provided in this Note, change the method of calculating the Conversion Price Agreement and in a manner adverse to the Holder. (b) Notwithstanding any other provision of this Note or the Note Purchase Agreement, in addition to the requirements of Section 7.3(a), any amendment of (x) the second or third sentence of Section 2.1, (y) the definition respect of the term Aggregated Person or (z) this Section 7.3(b) shall require approval by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock, present in person or represented by proxy at a duly convened meeting of stockholders transactions contemplated hereby. Each of the Company, Holdings and entitled to vote or the consent thereto Selling Stockholders irrevocably agrees that all claims in writing by holders of a majority respect of the outstanding shares interpretation and enforcement of Common Stockthe provisions of this Agreement and in respect of the transactions contemplated hereby, or with respect to any such action or proceeding, shall be heard and determined in the Court of Chancery of the State of Delaware (or, solely to the extent that the Court of Chancery lacks jurisdiction, any other Delaware State court or federal court located in the State of Delaware), and that such jurisdiction of such courts with respect thereto shall be exclusive, except solely to the stockholders extent that all such courts shall lawfully decline to exercise such jurisdiction. Each of the Company are Company, Holdings and the Selling Stockholders hereby expressly made third party beneficiaries waives, and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or in respect of any such transaction, that it is not subject to such jurisdiction. Each of the Company, Holdings and the Selling Stockholders hereby waives, and agrees not to assert, to the maximum extent permitted by law, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof or in respect of any such transaction, that such action, suit or proceeding may not be brought or is not maintainable in such courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts so long as such action, suit or proceeding is brought in accordance with this Section 7.3(b)7.5. The Company, Holdings and the Selling Stockholders hereby consent to and grant any such court jurisdiction over such parties and over the subject matter of any such dispute brought in accordance with this Section 7.5 and agree that mailing of process or other papers in connection with any such action or proceeding in the manner provided in this Section 7.5 or in Section 7.2 or in such other manner as may be permitted by law, shall be valid and sufficient service thereof. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. o Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective heirs, successors and permitted assigns; provided that this Agreement shall not be assignable or otherwise transferable by either party without the prior written consent of the other party.

Amendment; Waivers, etc. (a1) Neither Subject to Section 13.12 of the Credit Agreement, no amendment or waiver of any provision of this NoteAgreement, and no consent to any Interest Note departure by any Grantor herefrom, shall in any event be effective unless the same shall be in writing and signed by (i) the Obligor and (ii) the Collateral 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 any Other Note nor the Security Agreement nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge modification or termination is variance affecting the rights and benefits of a single Class of Secured Parties (and not all Secured Parties in writing signed by a like or similar manner) shall require the Majority Holders, provided that no such change, waiver, discharge or termination shall, without the written consent of the Holder Requisite Secured Parties of such Class. No failure on the part of the Collateral Agent or any other Secured Party to exercise, and no delay in exercising any right hereunder, shall operate as a waiver thereof; nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. (2) Upon the execution and delivery, or authentication, by an Additional Grantor of a Joinder Agreement, such Additional Grantor and shall be and become a Grantor hereunder, and each reference in this Agreement and the holders other Credit Documents to “Grantor” shall also mean and be a reference to such Additional Grantor, and each reference in this Agreement and the other Credit Documents to “Collateral” shall also mean and be a reference to the Collateral of such Additional Grantor. Concurrently with the Other Notes affected thereby (i) extend delivery or authentication by such Additional Grantor of a Joinder Agreement, such Additional Grantor shall deliver a supplement to the scheduled final maturity of this Note, any Interest Note or any Other Note, or reduce Perfection Certificate setting forth the rate or extend information required pursuant to the time of payment of interest Perfection Certificate solely with respect to such Additional Grantor (other than as a result any information that, by the terms of waiving the applicability of any post-default increase in interest rates) hereon or thereon or reduce the principal amount hereof or thereof or the Redemption PricePerfection Certificate, the Redemption Event Redemption Price, the Share Limitation Redemption Price or the Repurchase Price, (ii) release the collateral or reduce the amount of collateral is required to be deposited or maintained by disclosed only as of the Company pursuant Effective Date) and each reference in this Agreement and in the other Credit Documents to the Security Agreement except as expressly provided in the Security Agreement, (iii) amend, modify or waive any provision of this Section 7.3, (iv) reduce any percentage specified in, or otherwise modify, the definition of Majority Holders or (v) except as provided in this Note, change the method of calculating the Conversion Price in Perfection Certificate shall mean and be a manner adverse reference to the HolderPerfection Certificate as supplemented thereby. (b) Notwithstanding any other provision of this Note or the Note Purchase Agreement, in addition to the requirements of Section 7.3(a), any amendment of (x) the second or third sentence of Section 2.1, (y) the definition of the term Aggregated Person or (z) this Section 7.3(b) shall require approval by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock, present in person or represented by proxy at a duly convened meeting of stockholders of the Company, and entitled to vote or the consent thereto in writing by holders of a majority of the outstanding shares of Common Stock, and the stockholders of the Company are hereby expressly made third party beneficiaries of this Section 7.3(b).

Amendment; Waivers, etc. (a) Neither this NoteThis Agreement may not be amended, any Interest Note modified or any Other Note nor the Security Agreement nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing supplemented except by a written instrument signed by the Majority HoldersCompany, provided that no such change, waiver, discharge or termination shall, without CVC (but only for so long as the consent of the Holder and the holders of the Other Notes affected thereby (i) extend the scheduled final maturity of this Note, any Interest Note or any Other Note, or reduce the rate or extend the time of payment of interest (other than as a result of waiving the applicability of any post-default increase in interest rates) hereon or thereon or reduce the principal amount hereof or thereof or the Redemption Price, the Redemption Event Redemption Price, the Share Limitation Redemption Price or the Repurchase Price, (ii) release the collateral or reduce the amount of collateral required to be deposited or maintained by the Company pursuant to the Security Agreement except as expressly provided CVC Stockholders beneficially own in the Security Agreement, (iii) amend, modify or waive any provision of this Section 7.3, (iv) reduce any percentage specified in, or otherwise modify, the definition of Majority Holders or (v) except as provided in this Note, change the method of calculating the Conversion Price in a manner adverse to the Holder. (b) Notwithstanding any other provision of this Note or the Note Purchase Agreement, in addition to the requirements of Section 7.3(a), any amendment of (x) the second or third sentence of Section 2.1, (y) the definition of the term Aggregated Person or (z) this Section 7.3(b) shall require approval by the affirmative vote of the holders of a majority aggregate at least 5% of the outstanding shares of Common Stock), present in person or represented by proxy OTPP (but only for so long as OTPP beneficially owns at a duly convened meeting of stockholders of the Company, and entitled to vote or the consent thereto in writing by holders of a majority least 5% of the outstanding shares of Common Stock) and (i) to the extent (and only to the extent) any particular Other Stockholder’s rights hereunder are uniquely and adversely affected by such amendment, modification or supplement, by such Other Stockholder or (ii) to the extent (and only to the extent) the interests of the Other Stockholders as a group are uniquely and adversely affected by such amendment, modification or supplement, by two-thirds (based on the number of shares of Common Stock owned by each Other Stockholder at the time of such amendment, modification or supplement) of the Other Stockholders; provided, however, that the consent of any Other Stockholder, CVC or OTPP shall not be required to the joinder of those Persons who become parties hereto pursuant to Section 5.6 hereof. The Company shall notify all Other Stockholders promptly after any such amendment, modification or supplement shall have taken effect. For purposes of Section 5.8, each of the CVC Stockholders and OTPP shall be deemed Other Stockholders at such time and for so long as the CVC Stockholders and their Affiliates collectively, in the case of CVC, and OTPP and its Affiliates collectively, in the stockholders case of OTPP, beneficially own less than 5% of the Company are hereby expressly made third outstanding shares of Common Stock. No waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party beneficiaries against whom enforcement of the waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Section 7.3(b)Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.