OF THIS AGREEMENT AND THE NOTE AND THE
MAKING AND REPAYMENT OF THE OBLIGATIONS ARISING HEREUNDER, UNDER THE NOTE AND
UNDER THE OTHER RELATED AGREEMENTS.
11.4
SUCCESSORS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE
PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE BINDING UPON, THE
SUCCESSORS, HEIRS, EXECUTORS AND ADMINISTRATORS OF THE PARTIES HERETO AND SHALL
INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EACH PERSON OR ENTITY WHICH SHALL
BE A HOLDER OF THE SECURITIES FROM TIME TO TIME, OTHER THAN THE HOLDERS OF
COMMON STOCK WHICH HAS BEEN SOLD BY THE PURCHASER PURSUANT TO RULE 144 OR AN
EFFECTIVE REGISTRATION STATEMENT. THE PURCHASER SHALL NOT BE PERMITTED TO ASSIGN
ITS RIGHTS HEREUNDER OR UNDER ANY RELATED AGREEMENT TO A COMPETITOR OF THE
COMPANY UNLESS AN EVENT OF DEFAULT (AS DEFINED IN THE NOTE) HAS OCCURRED AND IS
CONTINUING.
11.5
ENTIRE AGREEMENT; MAXIMUM INTEREST. THIS AGREEMENT, THE RELATED
AGREEMENTS, THE EXHIBITS AND SCHEDULES HERETO AND THERETO AND THE OTHER
DOCUMENTS DELIVERED PURSUANT HERETO CONSTITUTE THE FULL AND ENTIRE UNDERSTANDING
AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECTS HEREOF AND NO
PARTY SHALL BE LIABLE OR BOUND TO ANY OTHER IN ANY MANNER BY ANY
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS EXCEPT AS SPECIFICALLY SET
FORTH HEREIN AND THEREIN. NOTHING CONTAINED IN THIS AGREEMENT, ANY RELATED
AGREEMENT OR IN ANY DOCUMENT REFERRED TO HEREIN OR DELIVERED IN CONNECTION
HEREWITH SHALL BE DEEMED TO ESTABLISH OR REQUIRE THE PAYMENT OF A RATE OF
INTEREST OR OTHER CHARGES IN EXCESS OF THE MAXIMUM RATE PERMITTED BY APPLICABLE
LAW. IN THE EVENT THAT THE RATE OF INTEREST OR DIVIDENDS REQUIRED TO BE PAID OR
OTHER CHARGES HEREUNDER EXCEED THE MAXIMUM RATE PERMITTED BY SUCH LAW, ANY
PAYMENTS IN EXCESS OF SUCH MAXIMUM SHALL BE CREDITED AGAINST AMOUNTS OWED BY THE
COMPANY TO THE PURCHASER AND THUS REFUNDED TO THE COMPANY.
11.6
AMENDMENT AND WAIVER.
(A)
THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY UPON THE WRITTEN
CONSENT OF THE COMPANY AND THE PURCHASER.
25
(B)
THE OBLIGATIONS OF THE COMPANY AND THE RIGHTS OF THE PURCHASER
UNDER THIS AGREEMENT MAY BE WAIVED ONLY WITH THE WRITTEN CONSENT OF THE
PURCHASER.
(C)
THE OBLIGATIONS OF THE PURCHASER AND THE RIGHTS OF THE COMPANY
UNDER THIS AGREEMENT MAY BE WAIVED ONLY WITH THE WRITTEN CONSENT OF THE COMPANY.
11.7
DELAYS OR OMISSIONS. IT IS AGREED THAT NO DELAY OR OMISSION TO
EXERCISE ANY RIGHT, POWER OR REMEDY ACCRUING TO ANY PARTY, UPON ANY BREACH,
DEFAULT OR NONCOMPLIANCE BY ANOTHER PARTY UNDER THIS AGREEMENT OR THE RELATED
AGREEMENTS, SHALL IMPAIR ANY SUCH RIGHT, POWER OR REMEDY, NOR SHALL IT BE
CONSTRUED TO BE A WAIVER OF ANY SUCH BREACH, DEFAULT OR NONCOMPLIANCE, OR ANY
ACQUIESCENCE THEREIN, OR OF OR IN ANY SIMILAR BREACH, DEFAULT OR NONCOMPLIANCE
THEREAFTER OCCURRING. ALL REMEDIES, EITHER UNDER THIS AGREEMENT OR THE RELATED
AGREEMENTS, BY LAW OR OTHERWISE AFFORDED TO ANY PARTY, SHALL BE CUMULATIVE AND
NOT ALTERNATIVE.
11.8
NOTICES. ALL NOTICES REQUIRED OR PERMITTED HEREUNDER SHALL