which notices, requests, consents or other
communications hereunder are to be delivered by giving the other parties notice
in the manner set forth in this Section 13.1.
13.2.
ASSIGNMENTS; PARTICIPATIONS.
THIS AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE RESPECTIVE
SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO.
13.3.
AMENDMENT OR WAIVER.
NEITHER THIS AGREEMENT NOR
ANY OTHER DOCUMENT NOR ANY TERMS HEREOF OR THEREOF MAY BE CHANGED, WAIVED,
DISCHARGED OR TERMINATED UNLESS SUCH CHANGE, WAIVER, DISCHARGE OR TERMINATION IS
IN WRITING SIGNED BY THE COMPANY AND THE MAJORITY NOTEHOLDERS.
13.4.
NO WAIVER; REMEDIES CUMULATIVE.
NO FAILURE OR
DELAY ON THE PART OF ANY NOTEHOLDER IN EXERCISING ANY RIGHT, POWER OR PRIVILEGE
HEREUNDER OR UNDER ANY OTHER DOCUMENT AND NO COURSE OF DEALING BETWEEN THE
COMPANY AND ANY NOTEHOLDER SHALL OPERATE AS A WAIVER THEREOF; NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR PRIVILEGE HEREUNDER OR UNDER
ANY OTHER DOCUMENT PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE
EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE HEREUNDER OR THEREUNDER.
THE
RIGHTS AND REMEDIES HEREIN EXPRESSLY PROVIDED ARE CUMULATIVE AND NOT EXCLUSIVE
OF ANY RIGHTS OR REMEDIES THAT A NOTEHOLDER WOULD OTHERWISE HAVE.
NO NOTICE TO
OR DEMAND ON THE COMPANY IN ANY CASE SHALL ENTITLE THE COMPANY TO ANY OTHER OR
FURTHER NOTICE OR DEMAND IN SIMILAR OR OTHER CIRCUMSTANCES OR CONSTITUTE A
WAIVER OF THE RIGHTS OF THE NOTEHOLDERS TO ANY OTHER OR FURTHER ACTION IN ANY
CIRCUMSTANCES WITHOUT NOTICE OR DEMAND.
13.5.
NO STRICT CONSTRUCTION.
THE PARTIES HAVE
PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT AND THE
OTHER DOCUMENTS WITH COUNSEL SOPHISTICATED IN FINANCING TRANSACTIONS.
IN THE
EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THIS
AGREEMENT AND THE OTHER DOCUMENTS SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY
THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR
DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS OF THIS
AGREEMENT AND THE OTHER DOCUMENTS.
13.6.
INTERPRETATION; GOVERNING LAW; ETC.
13.6.1.
TIME IS (AND SHALL BE) OF THE ESSENCE IN THIS AGREEMENT
AND THE OTHER DOCUMENTS.
ALL COVENANTS, AGREEMENTS, REPRESENTATIONS AND
WARRANTIES MADE IN THIS
15
AGREEMENT OR ANY OTHER DOCUMENT OR IN CERTIFICATES DELIVERED PURSUANT HERETO OR
THERETO SHALL BE DEEMED TO HAVE BEEN RELIED ON BY EACH NOTEHOLDER,
NOTWITHSTANDING ANY INVESTIGATION MADE BY ANY SUCH PARTY ON ITS BEHALF, AND
SHALL SURVIVE THE EXECUTION AND DELIVERY TO EACH SUCH PARTY HEREOF AND THEREOF.
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION HEREOF SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION HEREOF, AND ANY INVALID OR
UNENFORCEABLE PROVISION SHALL BE MODIFIED SO AS TO BE ENFORCED TO THE MAXIMUM
EXTENT OF ITS VALIDITY OR ENFORCEABILITY. THIS AGREEMENT AND THE OTHER DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND THEREOF AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS
UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR ORAL.
13.6.2.
THIS