Common use of Waiver and Consent Clause in Contracts

Waiver and Consent. Each of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.

Waiver and Consent. Each of the StockholdersCompany, in its capacity as sponsor of the Trust and in its capacity as holder of all outstanding Common Securities of the Trust, the Regular Trustees, the Property Trustee, the Delaware Trustee and the Investors, which constitute all of the parties to the Amended and Restated Declaration of Trust, agrees that, to the extent any provisions of this Agreement are inconsistent with respect any provisions of the Amended and Restated Declaration of Trust, the provisions of the Amended and Restated Declaration of Trust are deemed amended on the Closing Date to itself conform to the provisions of this Agreement. Each of the Company, the Debenture Trustee, the Property Trustee, as the record owner of the Convertible Debentures, the Trust and the Investors, agrees that, to the extent any provisions of this Agreement are inconsistent with any provisions of the Indenture, the provisions of the Indenture are deemed amended on the Closing Date to conform to the provisions of this Agreement. In connection with the execution of this Agreement and the Amendments, each of the parties hereto, to the extent applicable, hereby approves, consents to and authorizes each of the amendments to the Amended and Restated Declaration of Trust, the Indenture and the Guarantee Agreements contemplated or effected by the Transaction Documents (including this Agreement) and hereby approves, consents to and authorizes all actions necessary for the execution of this Agreement, the Amendments and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed TransactionsTransaction Documents, including, without limitation, authorizing and directing the Debenture Trustee to accept and rely upon the opinion of tax counsel and the opinion of counsel being delivered pursuant to this Agreement for its execution of the First Supplemental Indenture to the Indenture delivered in connection herewith, and authorizing and directing each of the other applicable Trustees to execute the other Amendments on its behalf. Without limiting the generality of the foregoing, each of the parties hereto agrees and acknowledges that it will be deemed to have waived at Closing (a) any of its approval, consent and/or notice rights and/or rights to noticeadditional satisfaction (if any), rights to written assurancesand (b) any inconsistency with or default under the provisions of the Amended and Restated Declaration of Trust arising under, redemption rights arising out of a Change of Controlor triggered by, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to this Agreement or any other payments, securities, property Transaction Document or consideration the transactions contemplated or effected hereby or thereby or consummated pursuant hereto or thereto. Each such party further agrees that the Trust is to execute this Agreement for the purpose of whatever kind or naturebecoming a party hereto and agreeing to perform its obligations and duties hereunder.

Waiver and Consent. Each Landlord hereby consents to the location of the StockholdersEquipment on the Premises and does irrevocably waive, with respect disclaim and relinquish and assign to itself Lessor any and all rights to impose, receive, assert or enforce any lien, encumbrance, charge, security interest, ownership interest, claim or demand of any kind against or involving the Equipment, whether arising by common law, statute or consensually (under the Lease or otherwise) and whether now in existence or hereafter created, including, but not limited to, those for rent or other holders right of Preferred Stock payment. This waiver, disclaimer, relinquishment and assignment shall survive the termination of the Lease. Landlord further agrees that (a) neither the Equipment nor any item thereof shall become part of, or otherwise be or become a fixture attached to, the Premises, notwithstanding the manner of the Equipment's annexation, the Equipment's adaptability to the uses and purposes for which the Premises are used, and the intentions of the party making the annexation; (b) the Equipment (or any item thereof) may be repossessed by Lessor; (c) in connection with respect to all outstanding shares such repossession or otherwise, Lessor, and any of Preferred Stockits agents and employees, including all shares of Preferred Stock beneficially owned by it, effective and conditioned may enter upon the Closing (as defined in Premises for the Selling Stockholder Purchase Agreement), hereby purposes of (i) irrevocably waives all Accretion guarding and Allocation Rights with respect to maintaining the Proposed TransactionsEquipment (or any item thereof), (ii) irrevocably waivesshowing the Equipment (or any item thereof) to prospective lenders, buyers, lessees and sublessees, as applicable, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactionsof their respective agents and employees, (iii) irrevocably consents to for all purposes under preparing, disassembling, dismantling, loading and/or removing the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment AgreementsEquipment (or any item thereof), and irrevocably authorizes and empowers (iv) general inspections of the Company Equipment pursuant to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Credit Agreement; and (ivd) irrevocably waives, except with respect to the right of Lessor to enter the Stockholders Premises and the other rights granted to receive the Shares upon conversion Lessor in this Waiver shall not terminate until thirty (30) days after Lessor receives written notice from Landlord of the outstanding shares termination of Preferred Stock, any interest and any and all other the Lease. If Lessor should exercise its rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements hereunder (and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any failure to exercise such rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.shall not be construed as

Waiver and Consent. Each Landlord hereby consents to the location of the StockholdersEquipment on the Premises and does irrevocably waive, with respect disclaim and relinquish and assign to itself Lessor any and all rights to impose, receive, assert or enforce any lien, encumbrance, charge, security interest, ownership interest, claim or demand of any kind against or involving the Equipment, whether arising by common law, statute or consensually (under the Lease or otherwise) and whether now in existence or hereafter created, including, but not limited to, those for rent or other holders right of Preferred Stock payment. This waiver, disclaimer, relinquishment and assignment shall survive the termination of the Lease. Landlord further agrees that (a) neither the Equipment nor any item thereof shall become part of, or otherwise be or become a fixture attached to, the Premises, notwithstanding the manner of the Equipment's annexation, the Equipment's adaptability to the uses and purposes for which the Premises are used, and the intentions of the party making the annexation; (b) the Equipment (or any item thereof) may be repossessed by Lessor; (c) in connection with respect to all outstanding shares such repossession or otherwise, Lessor, and any of Preferred Stockits agents and employees, including all shares of Preferred Stock beneficially owned by it, effective and conditioned may enter upon the Closing (as defined in Premises for the Selling Stockholder Purchase Agreement), hereby purposes of (i) irrevocably waives all Accretion guarding and Allocation Rights with respect to maintaining the Proposed TransactionsEquipment (or any item thereof), (ii) irrevocably waivesshowing the Equipment (or any item thereof) to prospective lenders, buyers, lessees and sublessees, as applicable, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactionsof their respective 25 agents and employees, (iii) irrevocably consents to for all purposes under preparing, disassembling, dismantling, loading and/or removing the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment AgreementsEquipment (or any item thereof), and irrevocably authorizes and empowers (iv) general inspections of the Company Equipment pursuant to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Credit Agreement; and (ivd) irrevocably waives, except with respect to the right of Lessor to enter the Stockholders Premises and the other rights granted to receive the Shares upon conversion Lessor in this Waiver shall not terminate until thirty (30) days after Lessor receives written notice from Landlord of the outstanding shares termination of Preferred Stockthe Lease. If Lessor should exercise its rights hereunder (and the failure to exercise such rights shall not be construed as a waiver thereof), any interest Landlord agrees upon receiving prior written notice, to provide ingress and any and all other rights the Stockholders may have or which may accrue egress to effect such exercise as well as provide reasonably adequate space contiguous to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason location of the Company’s entry into Equipment to permit the exercise of such rights. Landlord further agrees that Lessor has no obligation to exercise any right granted to Lessor in this Waiver and the consummation that Lessor may elect to remove only a portion or none of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureEquipment from the Premises.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Stockholdersholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Each Noteholder, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights shall be deemed to have waived any right of offset against the Company with respect to the Proposed Transactionsindebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 7 (Redemption), Section 5 (Events of Default; Acceleration), Section 6 (Failure to Make Payments), or Section 16 (Waiver and Consent) of the Series A-2 Certificate Subordinated Notes that adversely affects the rights of Designation, any Noteholder; (vii) disproportionately affect the Series A-3 Certificate rights of Designation and any of the Investment Agreements, and irrevocably authorizes and empowers Noteholders of the then outstanding Subordinated Notes; (viii) permit the Company to proceed with, the Proposed Transactions upon declare or pay any cash dividends while an Event of Default is continuing or; modify the terms set forth of subordination of the affected Subordinated Note in a manner adverse to the Selling Stockholder Purchase Agreementholder. Notwithstanding the foregoing, the Company Purchase Agreement and may amend or supplement the Exchange Agreement; and (iv) irrevocably waives, except with respect to Subordinated Notes without the right consent of the Stockholders Noteholders to receive cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Shares upon conversion rights of any Noteholder. No failure to exercise or delay in exercising, by any Noteholder of the outstanding shares Subordinated Notes, of Preferred Stockany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any interest and single or partial exercise of any and all right, power or privilege preclude any other rights or further exercise thereof, or the Stockholders may have exercise of any other right or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend remedy provided at law or in equity. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided at law or in equity. No notice or demand on the Company in any case shall, in itself, entitle the Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding at least fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securities, property expressed or consideration of whatever kind or nature.A-23

Waiver and Consent. Each Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), The undersigned hereby (i) irrevocably waives all Accretion and Allocation Rights waive the restriction on the pledge of the Ordinary Shares set forth in paragraph 6 of the Third Amendment to the Purchase Agreement referred to above only with respect to the Proposed Transactionsproposed pledges of (A) all PHK Shares owned by Phicomm, and (B) 5,000,000 Ordinary Shares owned by the Acquirer and (ii) irrevocably waives, consent to Phicomm’s pledge of such PHK Shares and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect Acquirer’s pledge of such Ordinary Shares to the Unexercised Series A-3 Preferred in connection with Fund pursuant to the Proposed Transactions, (iii) irrevocably consents Subscription Agreement referred to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation above and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth above letter. As provided in the Selling Stockholder Section 4.02 of Purchase Agreement, this waiver and consent is effective solely in this specific instance and for the Company Purchase specific purpose of permitting Phicomm to pledge its PHK Shares to the Fund and permitting Acquirer to pledge such 5,000,000 Ordinary Shares to the Fund, in each case pursuant to the Subscription Agreement and the Exchange Agreement; above letter from the Acquirer and (iv) irrevocably waivesPhicomm HK, except with respect subject to the right condition that the contemplated pledge of such 5,000,000 Ordinary Shares, once effected, shall be subject to a valid term until and expiring on June 30, 2016 (by which time such 5,000,000 Ordinary Shares shall be immediately released from the pledge, charge, equitable mortgage or any other securities interest) and shall no longer be valid or existing (in whatever form of charge, pledge, equitable mortgage or other securities interest or encumbrances) following June 30, 2016 of the Stockholders to receive closing of all the remaining Ordinary Shares upon conversion and corresponding Purchase Price in accordance with the terms of the outstanding shares Purchase Agreement has not been completed by June 30, 2016, and in case of Preferred Stockany breach or non-occurrence of such condition, any interest this waiver and any consent shall be automatically and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements unconditionally revoked as if this waiver and the Registration Rights Agreement by reason consent has never been issued at all. The consent of the Company’s entry into undersigned shall continue to be required for any additional pledge or other direct or indirect disposition of Ordinary Shares by Acquirer of any of its Affiliates. Capitalized terms used in this Waiver and Consent without definition shall have the consummation of respective meanings assigned to them by the Proposed Transactions, including, without limitation, any rights Purchase Agreement referred to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.above. SHAH CAPITAL MANAGEMENT INC. HXXXXXXX X. XXXX By: /s/ Hxxxxxxx X. Xxxx /s/ Hxxxxxxx X. Xxxx Name: Hxxxxxxx X. Xxxx Hxxxxxxx X. Xxxx Title: SHAH CAPITAL OPPORTUNITY FUND LP By: /s/ Hxxxxxxx X. Xxxx Name: Hxxxxxxx X. Xxxx Title:

Waiver and Consent. The Lender hereby waives any Default or -------------------- Event of Default arising as a result of the failure by the Borrower to comply with or to satisfy the requirements of Section 7.9 of the Existing Credit Agreement but only with respect to its $1,300,000.00 investment in Diamond and consents to such $1,300,000.00 investment in Diamond. ARTICLE V Conditions to Effectiveness This Eleventh Amendment, and the modifications to the Credit Agreement provided for herein, shall become effective on the date (the "Eleventh Amendment ------------------ Effective Date") on which all of the following conditions have been (or are --------------- concurrently being) satisfied: ---- 1. Each of the StockholdersEleventh Amendment Documents shall have been executed and delivered by each party thereto. 2. The Lender shall have received executed legal opinions of King & Spalding special counsel to the Credit Parties, with respect in form and substance satisfactory to itself the Lender and all other holders of Preferred Stock taking into account this Eleventh Amendment and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), matters contemplated hereby (i) irrevocably waives all Accretion and Allocation Rights including, without limitation, opinions with respect to the Proposed Transactionsvalidity of the Eleventh Amendment Documents and the effectiveness of UCC filings in each state where Collateral described therein is located). Such legal opinion shall cover such matters incident to the transactions contemplated by this Eleventh Amendment and the other Eleventh Amendment Documents as the Lender may reasonably require. 3. The Lender shall have received the executed legal opinion of Xxxxx & Xxxxxxx, special FAA counsel to the Borrower, in form and substance satisfactory to the Lender taking into account this Eleventh Amendment and the matters contemplated hereby. Such legal opinion shall cover such matters incident to the transactions contemplated by this Eleventh Amendment and the other Eleventh Amendment Documents as the Lender may reasonably require. 4. The Lender shall have received a copy, in form and substance reasonably satisfactory to the Lender, of the corporate resolutions of the Borrower, authorizing the execution, delivery and performance of this Eleventh Amendment and the other Eleventh Amendment Documents to which the Borrower is a party, certified by the Secretary or an Assistant Secretary of the Borrower as of the Eleventh Amendment Effective Date, which certificates shall state that the resolutions or authorizations thereby certified have not been amended, modified, revoked or rescinded as of the date of such certificate. 5. The Lender shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower, dated the Eleventh Amendment Effective Date, as to the incumbency and signature of the officer(s) of the Borrower and of Diamond executing each Eleventh Amendment Document to which it is a party and any certificate or other document to be delivered by it pursuant hereto, together with evidence of the incumbency of such Secretary or Assistant Secretary. 6. The Lender shall have received true, correct and complete copies of the Governing Documents of the Borrower, certified as of the Eleventh Amendment Effective Date, as true, correct and complete copies thereof by the Secretary or an Assistant Secretary of the Borrower. 7. The Lender shall have received copies of certificates dated as of a recent date from the Secretary of State or other appropriate authority of such jurisdiction, evidencing the good standing of the Borrower in the State of its organization and in each State where the ownership, lease or operation of property or the conduct of business requires it to qualify as a foreign corporation or other entity except where the failure to so qualify would not have a Material Adverse Effect. 8. Each of the representations and warranties made by the Borrower in or pursuant to the Credit Documents shall be true and correct in all material respects on and as of the Eleventh Amendment Effective Date as if made on and as of such date (ii) irrevocably waivesexcept to the extent the same relate to another, earlier date, in which case they shall be true and correct in all material respects as of such earlier date). 9. No Default or Event of Default shall have occurred and be continuing other than as contemplated and waived by this Eleventh Amendment. 10. All corporate and other proceedings, and elects not to receive any payments that might otherwise be payable upon exercise ofall documents, instruments and other legal matters in connection with the transactions contemplated by the Eleventh Amendment Documents, the Investment Existing Credit Agreement, the Credit Agreement Rights and the other Credit Documents shall be reasonably satisfactory in form and substance to the Lender, and the Lender shall have received such other documents in respect of any aspect or consequence of the transactions contemplated hereby or thereby as it shall reasonably request. 11. The Lender shall have received in form and substance satisfactory to it that all of the requirements of Section 6.6 of the Existing Credit Agreement shall have been satisfied with respect to the Unexercised Series A-3 Preferred Term Loan Aircraft. 12. The Lender shall have received evidence in connection with the Proposed Transactionsform and substance satisfactory to it that all filings, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designationrecordings, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation registrations and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactionsactions, including, without limitation, the filing of financing statements on forms UCC-1, necessary or, in the reasonable opinion of the Lender, desirable to perfect the Liens created by the Security Documents with respect to the Term Loan Aircraft shall have been completed. 13. The Borrower shall have acquired the Term Loan Aircraft free and clear of all Liens. 14. The Lender shall have received each additional document, instrument, legal opinion or item of information reasonably requested by the Lender, including, without limitation, a copy of any rights debt instrument, security agreement or other material contract to notice, rights to written assurances, redemption rights arising out of which the Borrower is a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.party. ARTICLE VI

Waiver and Consent. Each Any consent or waiver given by the Noteholders or otherwise in accordance with the terms hereof shall be conclusive and binding upon such Noteholder and upon all subsequent holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing this Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of such Subordinated Note; (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, reduce the Investment Agreement Rights with respect to rate of or change the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, time for payment of interest on such Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of such Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendments of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 16 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholder to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Note in addition to or in place of certificated Subordinated Note, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each The Lender Parties hereby irrevocably (i) waive any and all Defaults and Events of Default that may exist and be continuing as of the Stockholders, with respect to itself Amendment Effective Date under and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase First Amended ITCD Credit Agreement and any other Loan Document as provided and defined in the First Amended ITCD Credit Agreement and irrevocably waive any and all remedies and other rights they may have under the First Amended ITCD Credit Agreement), hereby (i) irrevocably waives all Accretion any other Loan Document as provided and Allocation Rights with defined in the First Amended ITCD Credit Agreement, this Agreement or any other Loan Document or otherwise in respect to the Proposed Transactionsof such Defaults and Events of Defaults, (ii) irrevocably waives, agree and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect consent to the Unexercised Series A-3 Preferred consummation of each and every one of the Merger Transactions notwithstanding that the consummation of any such Merger Transaction may, in connection with the Proposed Transactionsabsence of this Section 9.14, be deemed to violate or breach, or conflict with, this Agreement or any other Loan Document or to constitute a Default or an Event of Default under the First Amended ITCD Credit Agreement, any other Loan Document as provided and defined in the First Amended ITCD Credit Agreement, this Agreement or any other Loan Document and (iii) irrevocably consents agree and covenant to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed TransactionsMEGAPOP Transactions notwithstanding that the consummation of the MEGAPOP Transactions may, includingin the absence of this Section 9.14, without limitationbe deemed to violate or breach, any rights to noticeor conflict with, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to this Agreement or any other paymentsLoan Document or to constitute a Default or an Event of Default under this Agreement or any other Loan Document. Notwithstanding any other provision of this Agreement to the contrary, securitiesonce this Agreement becomes effective, property or consideration the provisions of whatever kind or naturethis Section 9.14, as they apply to the First Amended ITCD Credit Agreement and any other such Loan Document, shall be deemed to have become effective immediately prior to the consummation of the Merger Transactions.

Waiver and Consent. Each Issuance of Senior Subordinated Notes. The Company proposes to issue its Senior Subordinated Notes due 2006 (as more particularly described in clause (iii) of the Stockholders, with respect to itself and all other holders definition of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined "Senior Subordinated Notes") in the Selling Stockholder Purchase Agreement)aggregate principal amount of $75,000,000, as set forth in an Offering Circular relating thereto substantially in the form previously furnished to Agent and Lenders, which are to be guaranteed by Subsidiary Guarantors. The Company intends to use the proceeds of such Senior Subordinated Notes to prepay the Loans. Lenders hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waivesconsent to, and elects not to receive waive any payments that might otherwise be payable upon exercise Default or Event of Default occurring as a result of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate issuance of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation such new Senior Subordinated Notes and the Investment Agreementsguarantee of such new Senior Subordinated Notes by Subsidiary Guarantors; provided the subordination provisions of the Senior Subordinated Indenture dated as of September 15, 1999 pursuant to which such new Senior Subordinated Notes are to be issued and irrevocably authorizes and empowers the Company guaranties of such new Senior Subordinated Notes by Subsidiary Guarantors are to proceed with, the Proposed Transactions upon the terms be made shall be identical in all material respects to those provisions set forth in Articles Ten, Eleven and Twelve of the Selling Stockholder Purchase Senior Subordinated Indenture dated as of March 15, 1996 and the Senior Subordinated Indenture dated as of July 21, 1997. (S) 2.4. Waiver and Consent - Prepayment of Eurodollar Loans. The Company proposes to use the proceeds of the new Senior Subordinated Notes to prepay the Loans, which may include Eurodollar Loans. Such proposed prepayment may violate Section 2.07(a)(ii) of the Credit Agreement, which permits the prepayment of a Eurodollar Loan only on the last day of an Interest Period for such Eurodollar Loan. Lenders hereby consent to, and waive any Default or Event of Default under Section 2.07 of the Credit Agreement occurring as a result of, the prepayment of such Loans; provided the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waivesshall, except with respect pursuant to the right Section 5.05 of the Stockholders Credit Agreement, promptly pay to receive each Lender any breakage costs associated with the Shares upon conversion prepayment of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureEurodollar Loans.