FUND AGREEMENT (I.E., NOTWITHSTANDING INVESTOR'S
VARIOUS CONSENT AND OTHER RIGHTS, INVESTOR IS NOT ACTING IN THE CAPACITY OF A
GENERAL PARTNER AND NO PERSON HAS ANY RIGHTS AGAINST INVESTOR IN CONNECTION
THEREWITH).
27.
AMENDMENTS AND WAIVERS.
THIS AGREEMENT MAY
BE AMENDED AND THE OBSERVANCE OF ANY PROVISION OF THIS AGREEMENT MAY BE WAIVED
(EITHER GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR
PROSPECTIVELY) ONLY WITH THE WRITTEN CONSENT OF EACH PARTY HERETO.
28.
TERMINATION.
EXCEPT AS OTHERWISE EXPRESSLY
STATED HEREIN, THE PROVISIONS OF THIS AGREEMENT SHALL TERMINATE ON THE LATER OF
THE DATE THAT INVESTOR AND ITS AFFILIATES (A) NO LONGER HAVE THE POTENTIAL RIGHT
TO ACQUIRE ANY FUTURE ECONOMIC INTEREST IN ANY SUBSEQUENT FUND PURSUANT TO
SECTION 7, (B) NO LONGER HAVE ANY INTEREST (INCLUDING THE RIGHT TO RECEIVE A
PORTION OF THE INCENTIVE ALLOCATION) IN ANY DEERFIELD PEGASUS FUND GP, (C) NO
LONGER HAVE ANY INTEREST IN ANY DEERFIELD PEGASUS FUND OR (D) ELECT TO EXERCISE
THE WARRANTS, PROVIDED THAT, NOTWITHSTANDING THE FOREGOING, SECTIONS 6, 8, 9 AND
12 SHALL SURVIVE INDEFINITELY.
29.
SIDE LETTER PROVISION.
TO THE EXTENT THAT
ANY OF THE INVESTOR OR ITS AFFILIATES HAS AN INTEREST IN ANY DEERFIELD PEGASUS
FUND OR ANY DEERFIELD PEGASUS FUND GP, DCM SHALL ENSURE THAT EACH DEERFIELD
PEGASUS FUND DOCUMENT RELATING THERETO, TO THE EXTENT APPLICABLE, CONTAIN
EXPRESS PROVISIONS AUTHORIZING THE PROVISIONS CONTAINED HEREIN.
30.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY THE
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS OF THE PARTIES HERETO.
31.
MISCELLANEOUS.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE PARTIES HERETO
HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS
LOCATED IN NEW YORK, NEW YORK FOR THE RESOLUTION OF ALL MATTERS PERTAINING TO
THE ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
[Remainder of page intentionally left blank; signature page follows.]
IF THE ABOVE CORRECTLY REFLECTS OUR UNDERSTANDING AND AGREEMENT WITH RESPECT TO
THE FOREGOING MATTERS, PLEASE SO CONFIRM BY SIGNING THE ENCLOSED COPY OF THIS
AGREEMENT IN THE SPACE PROVIDED BELOW.
DEERFIELD PEGASUS LOAN CAPITAL LP
By:
DPLC General Partner LLC, its general partner
By:
/s/ Robert A. Contreras
Name: Robert A. Contreras
Title: Deerfield Manager
DPLC General Partner LLC
By:
/s/ Robert A. Contreras
Name: Robert A. Contreras
Title: Deerfield Manager
DEERFIELD CAPITAL CORP.
By:
/s/ Robert A. Contreras
Name: Robert A. Contreras
Title: General Counsel
DEERFIELD CAPITAL MANAGEMENT LLC
By:
/s/ Robert A. Contreras
Name: Robert A. Contreras
Title: General Counsel
PEGASUS DEERFIELD (AIV), LLC
By:
Pegasus Investors IV, L.P., its managing member
By:
Pegasus Investors IV GP, L.L.C., its general partner
By:
/s/ Rodney Cohen
Name:
Rodney Cohen
Title:
Vice President
PGS