FACSIMILE TRANSMISSION OR BY E-MAIL DELIVERY OF A ".PDF"
FORMAT DATA FILE, SUCH SIGNATURE SHALL CREATE A VALID AND BINDING OBLIGATION OF
THE PARTY EXECUTING (OR ON WHOSE BEHALF SUCH SIGNATURE IS EXECUTED) WITH THE
SAME FORCE AND EFFECT AS IF SUCH FACSIMILE OR ".PDF" SIGNATURE PAGE WERE AN
ORIGINAL THEREOF.
AT THE REQUEST OF ANY PARTY EACH OTHER PARTY SHALL PROMPTLY
RE-EXECUTE AN ORIGINAL FORM OF THIS AGREEMENT OR ANY AMENDMENT HERETO AND
DELIVER THE SAME TO THE OTHER PARTY.
NO PARTY HERETO SHALL RAISE THE USE OF A
FACSIMILE MACHINE OR E-MAIL DELIVERY OF A ".PDF" FORMAT DATA FILE TO DELIVER A
SIGNATURE TO THIS AGREEMENT OR ANY AMENDMENT HERETO OR THE FACT THAT SUCH
SIGNATURE WAS TRANSMITTED OR COMMUNICATED THROUGH THE USE OF A FACSIMILE MACHINE
OR E-MAIL DELIVERY OF A ".PDF" FORMAT DATA FILE AS A DEFENSE TO THE FORMATION OR
ENFORCEABILITY OF A CONTRACT, AND EACH PARTY HERETO FOREVER WAIVES ANY SUCH
DEFENSE.
C.
HEADINGS.
THE HEADINGS OF THIS
AGREEMENT ARE FOR CONVENIENCE OF REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT
THE INTERPRETATION OF, THIS AGREEMENT.
D.
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT SHALL BE INVALID OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY
OR UNENFORCEABILITY SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF THE
REMAINDER OF THIS AGREEMENT IN THAT JURISDICTION OR THE VALIDITY OR
ENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT IN ANY OTHER JURISDICTION.
E.
ENTIRE AGREEMENT; AMENDMENTS.
THIS
AGREEMENT SUPERSEDES ALL OTHER PRIOR ORAL OR WRITTEN AGREEMENTS BETWEEN EACH
BUYER, THE COMPANY, ITS SUBSIDIARIES, THEIR AFFILIATES AND PERSONS ACTING ON
THEIR BEHALF WITH RESPECT TO THE MATTERS DISCUSSED HEREIN, AND THIS AGREEMENT
AND THE INSTRUMENTS REFERENCED HEREIN 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, MODIFIED OR
SUPPLEMENTED OTHER THAN BY AN INSTRUMENT IN WRITING SIGNED BY THE COMPANY AND
THE BUYERS THAT PURCHASED MORE THAN SIXTY SIX AND TWO THIRDS PERCENT (66 2/3%)
OF THE AGGREGATE
36
original principal amount of the Notes on the Closing Date, or if prior to the
Closing, by the Buyers listed on the Schedule of Buyers as being obligated to
purchase more than sixty six and two thirds percent (66 2/3%) of the aggregate
original principal amount of the Notes.
Any such amendment shall bind all
holders of the Notes and the Shares.
No such amendment shall be effective to
the extent that it applies to less than all of the holders of the Notes or
Shares then outstanding.
F.
NOTICES.
ANY NOTICES, CONSENTS,
WAIVERS OR OTHER COMMUNICATIONS REQUIRED OR PERMITTED TO BE GIVEN UNDER THE
TERMS OF THIS AGREEMENT MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN
DELIVERED:
(I) UPON RECEIPT, WHEN DELIVERED PERSONALLY; (II) UPON RECEIPT, WHEN
SENT BY FACSIMILE (PROVIDED CONFIRMATION OF