WITHOUT THE NECESSITY OF PROVING
ACTUAL DAMAGES AND WITHOUT POSTING A BOND OR OTHER SECURITY.
(N)
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE COMPANY MAKES A PAYMENT
OR PAYMENTS TO THE BUYERS HEREUNDER OR PURSUANT TO ANY OF THE OTHER TRANSACTION
DOCUMENTS OR THE BUYERS ENFORCE OR EXERCISE THEIR RIGHTS HEREUNDER OR
THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE PROCEEDS OF SUCH ENFORCEMENT OR
EXERCISE OR ANY PART THEREOF ARE SUBSEQUENTLY INVALIDATED, DECLARED TO BE
FRAUDULENT OR PREFERENTIAL, SET ASIDE, RECOVERED FROM, DISGORGED BY OR ARE
REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED TO THE COMPANY, A TRUSTEE,
RECEIVER OR ANY OTHER PERSON UNDER ANY LAW (INCLUDING, WITHOUT LIMITATION, ANY
BANKRUPTCY LAW, FOREIGN, STATE OR FEDERAL LAW, COMMON LAW OR EQUITABLE CAUSE OF
ACTION), THEN TO THE EXTENT OF ANY SUCH RESTORATION THE OBLIGATION OR PART
THEREOF ORIGINALLY INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUED IN
FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR SUCH ENFORCEMENT
OR SETOFF HAD NOT OCCURRED.
(O)
INDEPENDENT NATURE OF BUYERS' OBLIGATIONS AND RIGHTS.
THE
OBLIGATIONS OF EACH BUYER UNDER ANY TRANSACTION DOCUMENT ARE SEVERAL AND NOT
JOINT WITH THE OBLIGATIONS OF ANY OTHER BUYER, AND NO BUYER SHALL BE RESPONSIBLE
IN ANY WAY FOR THE PERFORMANCE OF THE OBLIGATIONS OF ANY OTHER BUYER UNDER ANY
TRANSACTION DOCUMENT.
NOTHING CONTAINED HEREIN OR IN ANY OTHER TRANSACTION
DOCUMENT, AND NO ACTION TAKEN BY ANY BUYER PURSUANT HERETO OR THERETO, SHALL BE
DEEMED TO CONSTITUTE THE BUYERS AS A PARTNERSHIP, AN ASSOCIATION, A JOINT
VENTURE OR ANY OTHER KIND OF ENTITY, OR CREATE A PRESUMPTION THAT THE BUYERS ARE
IN ANY WAY ACTING IN CONCERT OR AS A GROUP WITH RESPECT TO SUCH OBLIGATIONS OR
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
EACH BUYER CONFIRMS
THAT IT HAS INDEPENDENTLY PARTICIPATED IN THE NEGOTIATION OF THE TRANSACTION
CONTEMPLATED HEREBY WITH THE ADVICE OF ITS OWN COUNSEL AND ADVISORS.
EACH BUYER
SHALL BE ENTITLED TO INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS, INCLUDING,
WITHOUT LIMITATION, THE RIGHTS ARISING OUT OF THIS AGREEMENT OR OUT OF ANY OTHER
TRANSACTION DOCUMENTS, AND IT SHALL NOT BE
28
NECESSARY FOR ANY OTHER BUYER TO BE JOINED AS AN ADDITIONAL PARTY IN ANY
PROCEEDING FOR SUCH PURPOSE.
(P)
INDIVIDUAL BUYER.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, OR ANY REFERENCES TO "BUYERS" HEREIN, HIGHBRIDGE INTERNATIONAL LLC
ACKNOWLEDGES AND THE COMPANY CONFIRMS THAT HIGHBRIDGE INTERNATIONAL LLC IS THE
ONLY BUYER PARTY TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
[Signature Page Follows]
29
IN WITNESS WHEREOF, each Buyer and the Company have caused their respective
signature page to this Securities Purchase Agreement to be duly executed as of
the date first written above.
COMPANY:
iPARTY CORP.
By:
/s/ SAL PERISANO
Name:
Sal Perisano
Title:
Chief Executive Officer
30
IN WITNESS WHEREOF, each Buyer and the Company have caused their respective
signature page to this Securities Purchase Agreement to be duly executed as of
the date first written above.
BUYERS:
HIGHBRIDGE INTERNATIONAL LLC