Common use of Amendment; Waivers, etc Clause in Contracts

Amendment; Waivers, etc. The provisions of Articles I, III and IV of this Agreement may be amended, and the Company and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the 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 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 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. The provisions of Articles INo amendment, III and IV modification or discharge of this Agreement may be amendedAgreement, and no waiver hereunder, and no extension of time for the Company and performance of any Participant 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 holders of a majority of the Equity Securities held obligations hereunder, shall be valid or binding unless set forth in writing and duly executed by Participants. The provisions (a) MetroPCS where enforcement of Article II of this Agreement may be amended, and the 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 Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the amendment, action modification, discharge, waiver or omission to act with respect to any Section of this Agreement for which such Sponsor’s rights extension is sought against MetroPCS or obligations have been terminated pursuant to Section 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 (b) DT where enforcement of the provisions of this Agreement shall in no way be construed as a amendment, modification, discharge, 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 purposeor extension is sought against DT, Holding or TMUS. 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 party granting such waiver in any other respect or at any other time. The waiver by MetroPCS or DT of a breach of, or a default under, any of the provisions hereof, or to exercise any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provi- sions, rights or privileges hereunder. Except as expressly provided in this Agreement, 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. Notwithstanding anything to the contrary contained herein, after the MetroPCS Stockholder Approval is obtained, no amendment, modification, discharge or waiver of this Agreement or any portion hereof shall be made that by Law requires further approval by the MetroPCS Stockholders without obtaining such approval.

Amendment; Waivers, etc. The provisions of Articles I, III and IV of this This Agreement may be amended, and the Company and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the Company and any Sponsor Founder Entity 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 EControls Group and the GTCR InvestorXxxxxx Group; provided that the approval of the Charlesbank Investor and the GTCR Investor EControls Group or Xxxxxx Group 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 SponsorFounder Entity’s rights or obligations have been terminated pursuant to Section 4.1. Notwithstanding anything herein ; provided further that the approval of the Company shall not be so required with respect to and in order to authorize the contraryamendment, action or omission to act if the Company’s rights or obligations are not adversely affected thereby; provided further that this Agreement may not be amended in a manner that adversely and disproportionately affects the rights or obligations of any Participant Founder Entity relative to the rights or obligations of all similarly situated Participantsthe other Founder Entity, in each case without the consent of such ParticipantFounder Entity. 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 Founder Entity 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 Founder Entity granting such waiver in any other respect or at any other time.

Amendment; Waivers, etc. The provisions of Articles I, III and IV of this This Agreement may not be amended, modified or supplemented except by a written instrument signed by the Company, CVC (but only for so long as the CVC Stockholders beneficially own in the aggregate at least 5% of the outstanding shares of Common Stock), OTPP (but only for so long as OTPP beneficially owns at least 5% of the outstanding shares of Common Stock) and (i) to the Company extent (and only to the extent) any Participant may take 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 action herein prohibitedOther Stockholder, CVC or omit to perform any act herein OTPP shall not be required to be performed by it, if and only if 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, action modification or omission to actsupplement shall have taken effect. For purposes of Section 5.8, has been approved by holders of a majority each of the Equity Securities held by Participants. The provisions 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 Article II of this Agreement may be amendedCVC, and OTPP and its Affiliates collectively, in the Company case of OTPP, beneficially own less than 5% of the outstanding shares of Common Stock. No waiver hereunder, shall be valid or binding unless set forth in writing 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 duly executed by the Company, the Charlesbank Investor and the GTCR Investor; provided that the approval party against whom enforcement of the 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 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 purposeis 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 Participant 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.

Amendment; Waivers, etc. The provisions of Articles INo amendment, III and IV supplement, modification or discharge of this Agreement may or the Seller Disclosure Letter, the Buyer Disclosure Letter or any schedule or exhibit hereto shall be amendedvalid or binding unless set forth in writing and duly executed by each of the parties hereto, and the Company and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the 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 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 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 hereunder or thereunder shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of this Agreement with respect to itself for any purposethe 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 Participant 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 105 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, except as expressly set forth herein (including Section 7.3, and Section 8.6), none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity. Notwithstanding anything to the contrary contained herein, Sections 4.10, 7.2, 7.3, 10.4, 10.9 and this Section 10.2 (and any provision of this Agreement to the extent that an amendment, modification, waiver or termination of such provision would modify the substance of any of those Sections) may not be amended, modified, waived or terminated in a manner that impacts or is adverse in any respect to the Financing Sources without the prior written consent of the Financing Sources.

Amendment; Waivers, etc. The provisions of Articles ISubject to compliance with applicable Law, III and IV of this Agreement may be amendedamended by the parties hereto, and in the case of the Company and the Buyer Parties, by action taken or authorized by their respective boards of directors, at any Participant may take any action herein prohibitedtime before or after either of, or omit to perform any act herein required to be performed by itboth of, if and only if any such amendmentthe Stockholder Approval or the Buyer Stockholder Approval are obtained; provided, action however, that after either the Stockholder Approval or omission to act, Buyer Stockholder Approval has been approved by holders of a majority obtained, there may not be, without further approval of the Equity Securities held by Participants. The provisions of Article II Stockholders or Buyer’s stockholders, as applicable, any amendment of this Agreement may be amended, and which by applicable Law otherwise requires the 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 further approval of the Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the amendment, action Stockholders or omission to act with respect to any Section of this Agreement for which such SponsorBuyer’s rights or obligations have been terminated pursuant to Section 4.1stockholders. Notwithstanding anything herein to the contrary, this This Agreement may not be amended except by an instrument in a manner that adversely and disproportionately affects writing signed on behalf of each of the rights or obligations of any Participant relative parties. Notwithstanding anything to the rights or obligations of all similarly situated Participantscontrary contained herein, in each case without the consent of such Participant. The failure of any party to enforce any of the provisions of Sections 7.3(c), 8.5, 8.9 and this Agreement shall in no way be construed as a waiver of such provisions Section 8.3 (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 to the extent an amendment, modification, waiver or termination of such provision would modify the substance of Sections 7.3(c), 8.5, 8.9 and this Section 8.3) may not be amended, modified, waived or terminated in a manner that is adverse in any material respect to itself for any purposethe Debt Financing Sources without the prior written consent of the Debt Financing Sources party to the Commitment Letter. No modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the modification, discharge or 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 Participant 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.

Amendment; Waivers, etc. The provisions of Articles INo amendment, III and IV modification or discharge of this Agreement may be amendedAgreement, and the Company no waiver hereunder, shall be valid or binding unless set forth in writing and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the 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 duly executed by the Company, the Charlesbank Investor and the GTCR Investor; provided that the approval party against whom enforcement of the Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the amendment, action modification, discharge 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 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 purposeis 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 Participant 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 party incurring such cost or expense. o Governing Law, etc. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING AS TO VALIDITY, INTERPRETATION AND EFFECT, 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) 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 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 Agreement and of the documents referred to in this Agreement and in respect of the transactions contemplated hereby. Each of the Company, Holdings and the Selling Stockholders irrevocably agrees that all claims in respect of the interpretation and enforcement of the 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 extent that all such courts shall lawfully decline to exercise such jurisdiction. Each of the Company, Holdings and the Selling Stockholders hereby 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 7.5. 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. The provisions of Articles I, III and IV No discharge of this Agreement may be amendedAgreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Company and any Participant may take any action herein prohibited, or omit to perform any act herein required to be performed by itholder of this Warrant or, if and only if any such amendment, action or omission to act, this Warrant has been approved subdivided, by holders of Warrants covering a majority of the Equity Securities held unexercised Warrant Shares originally subject to this Warrant. For the purpose of determining whether the holders of outstanding Warrants entitled to purchase a requisite number of Warrant Shares have at any time taken any action authorized by Participantsthis Warrant, any Warrants owned by the Company or any affiliate of the Company shall be deemed not to be outstanding. The provisions of Article II of terms and conditions at this Warrant Agreement may be amended, and the Company and any Sponsor may take any action herein prohibited, waived or omit to perform any act herein required to be performed by it, if and discharged 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 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 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 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. No amendment or modification of this Agreement shall be effective unless in a writing executed by the holders of two-thirds of the Warrant Shares, including for such purposes Warrant Shares issuable pursuant to outstanding, exercisable Warrants. The next page is the signature page.

Amendment; Waivers, etc. The provisions of Articles I, III and IV of this Agreement may be amended, and the Company and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this This Agreement may be amended, and the 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 Cattxxxxx Xxxestor and the GTCR InvestorPSP Investor ; provided that the approval of the Charlesbank Investor and the GTCR Cattxxxxx Xxxestor or PSP 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 's rights or obligations have been terminated pursuant to Section 4.1. Notwithstanding anything herein ; provided further that the approval of the Company shall not be so required with respect to and in order to authorize the contraryamendment, action or omission to act if the Company's rights or obligations are not adversely affected thereby; provided further that this Agreement may not be amended in a manner that adversely and disproportionately affects the rights or obligations of any Participant Sponsor relative to the rights or obligations of all similarly situated ParticipantsSponsors, in each case without the consent of such ParticipantSponsor. 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 Sponsor 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 Sponsor granting such waiver in any other respect or at any other time.

Amendment; Waivers, etc. The provisions of Articles INo amendment, III and IV modification or discharge of this Agreement may be amendedAgreement, and the Company no waiver under this Agreement, shall be valid or binding unless set forth in writing and any Participant 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 holders of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the 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 duly executed by the CompanyParties and Energy, as the Charlesbank Investor and the GTCR Investor; provided that the approval case may be, against whom enforcement of the Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the amendment, action modification, discharge 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 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 purposeis 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 any of the Participant Parties or Energy, as the case may be, granting such waiver in any other respect or at any other time. The waiver by any of the Parties or Energy, as the case may be, of a breach of or a default under any of the provisions of this Agreement, or any failure or delay to exercise any right or privilege under this Agreement, shall not be construed as a waiver thereof or otherwise affect any of such provisions, rights or privileges under this Agreement. The Parties and Energy shall amend this Agreement to make a wholly owned direct subsidiary of Purchaser a party hereto, provided that Purchaser agrees to cause any such Affiliate to enter into an amendment to this Agreement in accordance herewith pursuant to which Purchaser and such Affiliate shall provide that each of the respective representations, warranties, covenants and agreements made in this Agreement by Purchaser shall constitute the joint and several representations, warranties, covenants and agreements of each of Purchaser and such Affiliate; provided, further, that no amendment shall be permitted if such amendment shall impair, delay or otherwise adversely affect the consummation of the Transaction and the other transactions contemplated hereby and, in any event, after the tenth Business Day following the date hereof.

Amendment; Waivers, etc. The provisions of Articles INo amendment, III and IV modification or discharge of this Agreement may be amendedAgreement, and the Company no waiver hereunder, shall be valid or binding unless set forth in writing and any Participant may take any action herein prohibited, duly executed by 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 holders on behalf of a majority of the Equity Securities held by Participants. The provisions of Article II of this Agreement may be amended, and the 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; Required Participating Securityholders, provided that that, notwithstanding the approval of the Charlesbank Investor and the GTCR Investor shall not be so required with respect to and in order to authorize the foregoing, no such amendment, action modification, discharge or omission waiver shall be effective to act with respect to any Section of this Agreement for which such Sponsor’s rights or obligations have been terminated pursuant to Section 4.1. Notwithstanding anything herein to change the contrary, this Agreement may not be amended in a manner that adversely and disproportionately affects the rights or obligations number of any Participant relative to Participating Securityholder's Repurchased Shares, Investor Purchased Shares or Surrendered Option or the rights amount of any Participating Securityholder's Purchased Price for Repurchased Shares, Purchase Price for Investor Purchased Shares or obligations of all similarly situated Participants, in each case Option Cancellation Amount without the written 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 purposeParticipating Securityholder. 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 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 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.