ONLY WITH THE WRITTEN CONSENT OF EACH PARTY HERETO.
28.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES HERETO.
29.
Termination.
Except as set forth in
Sections 6, 8, 9, and 12 which shall survive indefinitely and except expressly
set forth herein, this Agreement shall terminate on the date when the Investor
no longer has any interest in, or any obligation in respect of, Fund I or DLC
GP.
30.
MISCELLANEOUS.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE PARTIES HERETO
HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
LOCATED IN NEW YORK, NEW YORK FOR THE RESOLUTION OF ALL MATTERS PERTAINING TO
THE ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
16
IF THE ABOVE CORRECTLY REFLECTS OUR UNDERSTANDING AND AGREEMENT WITH RESPECT TO
THE FOREGOING MATTERS, PLEASE SO CONFIRM BY SIGNING THE ENCLOSED COPY OF THIS
AGREEMENT IN THE SPACE PROVIDED BELOW.
DEERFIELD PEGASUS LOAN CAPITAL LP
By:
DPLC General Partner LLC, its general partner
By:
/s/ Robert A. Contreras
Name:
Robert A. Contreras
Title:
Deerfield Manager
DPLC General Partner LLC
By:
/s/ Robert A. Contreras
Name:
Robert A. Contreras
Title:
Deerfield Manager
DEERFIELD CAPITAL CORP.
By:
/s/ Robert A. Contreras
Name:
Robert A. Contreras
Title:
General Counsel
DEERFIELD CAPITAL MANAGEMENT LLC
By:
/s/ Robert A. Contreras
Name:
Robert A. Contreras
Title:
General Counsel
PEGASUS DEERFIELD (AIV), LLC
By:
Pegasus Investors IV, L.P., its managing member
By:
Pegasus Investors IV GP, L.L.C., its general partner
By:
/s/ Rodney Cohen
Name:
Rodney Cohen
Title:
Vice President
PGS MANAGEMENT, LLC
By:
Pegasus Capital Advisors IV, L.P., its managing member
By:
Pegasus Capital Advisors IV GP, L.L.C., its general partner
By:
/s/ Rodney Cohen
Name:
Rodney Cohen
Title:
Authorised Person
Signature page
Exhibit A
Representations and Warranties
1.
REPRESENTATIONS AND WARRANTIES OF EACH
PARTY.
EACH PARTY TO THE AGREEMENT REPRESENTS AND WARRANTS TO THE OTHER PARTIES
AS FOLLOWS:
(A)
ORGANIZATION AND QUALIFICATION.
SUCH PARTY
IS A DULY ORGANIZED OR FORMED, AS APPLICABLE, AND SUBSISTING LEGAL ENTITY UNDER
THE LAWS OF THE STATE OF ITS ORGANIZATION OR FORMATION, AS APPLICABLE.
SUCH
PARTY HAS THE REQUISITE LEGAL POWER AND AUTHORITY TO CONDUCT ITS BUSINESS AS
CURRENTLY CONDUCTED.
SUCH PARTY IS DULY QUALIFIED OR LICENSED TO DO BUSINESS
AND IS IN GOOD STANDING IN EVERY JURISDICTION WHERE ITS BUSINESS SO REQUIRES,
EXCEPT FOR SUCH FAILURES TO BE SO QUALIFIED OR LICENSED AS WOULD NOT,
INDIVIDUALLY OR IN THE AGGREGATE, BE REASONABLY EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT WITH RESPECT TO SUCH PARTY.
(B)
AUTHORITY.
SUCH PARTY HAS FULL LEGAL POWER
AND AUTHORITY TO ENTER INTO THE AGREEMENT AND