containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall
25
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS,
INCLUDING ANY PURCHASERS OF THE NOTES OR THE WARRANTS.
THE COMPANY SHALL NOT
ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR
WRITTEN CONSENT OF THE HOLDERS OF NOTES REPRESENTING AT LEAST A MAJORITY OF THE
AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING, INCLUDING BY MERGER OR
CONSOLIDATION, EXCEPT PURSUANT TO A CHANGE OF CONTROL (AS DEFINED IN SECTION
6(A) OF THE NOTES) WITH RESPECT TO WHICH THE COMPANY IS IN COMPLIANCE WITH
SECTION 6 OF THE NOTES AND SECTION 4(B) OF THE WARRANTS.
A BUYER MAY ASSIGN
SOME OR ALL OF ITS RIGHTS HEREUNDER WITHOUT THE CONSENT OF THE COMPANY, IN WHICH
EVENT SUCH ASSIGNEE SHALL BE DEEMED TO BE A BUYER HEREUNDER WITH RESPECT TO SUCH
ASSIGNED RIGHTS.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE BENEFIT
OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS, AND
IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED BY, ANY
OTHER PERSON.
(I)
SURVIVAL.
UNLESS THIS AGREEMENT IS TERMINATED UNDER SECTION 8, THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE BUYERS CONTAINED IN
SECTIONS 2 AND 3 AND THE AGREEMENTS AND COVENANTS SET FORTH IN SECTIONS 4, 5 AND
9 SHALL SURVIVE THE CLOSING.
EACH BUYER SHALL BE RESPONSIBLE ONLY FOR ITS OWN
REPRESENTATIONS, WARRANTIES, AGREEMENTS AND COVENANTS HEREUNDER.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO BE DONE
AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND DELIVER
ALL SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS ANY OTHER
PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND ACCOMPLISH THE
PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
(K)
INDEMNIFICATION.
IN CONSIDERATION OF EACH BUYER'S EXECUTION AND DELIVERY
OF THE TRANSACTION DOCUMENTS AND ACQUIRING THE SECURITIES THEREUNDER AND IN
ADDITION TO ALL OF THE COMPANY'S OTHER OBLIGATIONS UNDER THE TRANSACTION
DOCUMENTS, THE COMPANY SHALL DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS EACH
BUYER AND EACH OTHER HOLDER OF THE SECURITIES AND ALL OF THEIR STOCKHOLDERS,
PARTNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES AND DIRECT OR INDIRECT
INVESTORS AND ANY OF THE FOREGOING PERSONS' AGENTS OR OTHER REPRESENTATIVES
(INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT) (COLLECTIVELY, THE "INDEMNITEES")
FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES,
COSTS, PENALTIES, FEES, LIABILITIES AND DAMAGES, AND EXPENSES IN CONNECTION
THEREWITH (IRRESPECTIVE OF WHETHER ANY SUCH INDEMNITEE IS A PARTY TO THE ACTION
FOR WHICH INDEMNIFICATION HEREUNDER IS SOUGHT),