OR AFFECT THE INTERPRETATION OF, THIS
AGREEMENT.
(D)
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS PROHIBITED BY
LAW OR OTHERWISE DETERMINED TO BE INVALID OR UNENFORCEABLE BY A COURT OF
COMPETENT JURISDICTION, THE PROVISION THAT WOULD OTHERWISE BE PROHIBITED,
INVALID OR UNENFORCEABLE SHALL BE DEEMED AMENDED TO APPLY TO THE BROADEST EXTENT
THAT IT WOULD BE VALID AND ENFORCEABLE, AND THE INVALIDITY OR UNENFORCEABILITY
OF SUCH PROVISION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PROVISIONS OF
THIS AGREEMENT SO LONG AS THIS AGREEMENT AS SO MODIFIED CONTINUES TO EXPRESS,
WITHOUT MATERIAL CHANGE, THE ORIGINAL INTENTIONS OF THE PARTIES AS TO THE
SUBJECT MATTER HEREOF AND THE PROHIBITED NATURE, INVALIDITY OR UNENFORCEABILITY
OF THE PROVISION(S) IN QUESTION DOES NOT SUBSTANTIALLY IMPAIR THE RESPECTIVE
EXPECTATIONS OR RECIPROCAL OBLIGATIONS OF THE PARTIES OR THE PRACTICAL
REALIZATION OF THE BENEFITS THAT WOULD OTHERWISE BE CONFERRED UPON THE PARTIES.
THE PARTIES WILL ENDEAVOR IN GOOD FAITH NEGOTIATIONS TO REPLACE THE PROHIBITED,
INVALID OR UNENFORCEABLE PROVISION(S) WITH A VALID PROVISION(S), THE EFFECT OF
WHICH COMES AS CLOSE AS POSSIBLE TO THAT OF THE PROHIBITED, INVALID OR
UNENFORCEABLE PROVISION(S).
(E)
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT AND THE OTHER
TRANSACTION DOCUMENTS SUPERSEDE ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS
BETWEEN THE BUYERS, THE COMPANY, THEIR AFFILIATES AND PERSONS ACTING ON THEIR
BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT, THE
OTHER TRANSACTION DOCUMENTS AND THE INSTRUMENTS REFERENCED HEREIN AND THEREIN
CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE MATTERS
COVERED HEREIN AND THEREIN AND, EXCEPT AS SPECIFICALLY SET FORTH HEREIN OR
THEREIN, NEITHER THE COMPANY NOR ANY BUYER MAKES ANY REPRESENTATION, WARRANTY,
COVENANT OR UNDERTAKING WITH RESPECT TO SUCH MATTERS.
NO PROVISION OF THIS
AGREEMENT MAY BE AMENDED OR WAIVED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED
BY THE COMPANY AND THE HOLDERS OF AT LEAST 60% OF THE AGGREGATE NUMBER OF
REGISTRABLE SECURITIES ISSUED AND ISSUABLE HEREUNDER AND UNDER THE NOTES, AND
ANY AMENDMENT OR WAIVER TO THIS AGREEMENT MADE IN CONFORMITY WITH THE PROVISIONS
OF THIS SECTION 9(E) SHALL BE BINDING ON ALL BUYERS AND HOLDERS OF SECURITIES AS
APPLICABLE.
NO SUCH
35
AMENDMENT SHALL BE EFFECTIVE TO THE EXTENT THAT IT APPLIES TO LESS THAN ALL OF
THE HOLDERS OF THE APPLICABLE SECURITIES THEN OUTSTANDING.
NO CONSIDERATION
SHALL BE OFFERED OR PAID TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR
MODIFICATION OF ANY PROVISION OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE
SAME CONSIDERATION ALSO IS OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION
DOCUMENTS AND THE HOLDERS OF NOTES.
THE COMPANY HAS NOT, DIRECTLY OR
INDIRECTLY, MADE ANY AGREEMENTS WITH ANY BUYERS RELATING TO THE TERMS OR
CONDITIONS OF THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS EXCEPT
AS SET FORTH IN THE TRANSACTION DOCUMENTS.
WITHOUT LIMITING THE FOREGOING, THE
COMPANY CONFIRMS THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT, NO BUYER HAS MADE
ANY COMMITMENT OR PROMISE OR HAS ANY OTHER OBLIGATION TO PROVIDE ANY FINANCING
TO THE COMPANY OR