Majority Noteholders.
38
of Notes held by each such holder.
Notwithstanding the provisions of the first
sentence of this Section 9B(vi), at any time thereafter when additional funds of
the Company are legally available for the redemption of Notes, such funds shall
immediately be used to redeem the Notes (plus any premium payable thereon) which
the Company have become obligated to redeem on any Redemption Date but which it
has not redeemed.
(VII)
AT ANY TIME AFTER ANY NOTES HAVE BEEN DECLARED DUE AND PAYABLE
PURSUANT TO SECTION 9B, THE MAJORITY NOTEHOLDERS, BY WRITTEN NOTICE TO THE
COMPANY, MAY RESCIND AND ANNUL ANY SUCH DECLARATION AND ITS CONSEQUENCES.
NO
RESCISSION AND ANNULMENT UNDER THIS PARAGRAPH WILL EXTEND TO OR AFFECT ANY
SUBSEQUENT EVENT OF DEFAULT OR POTENTIAL EVENT OF DEFAULT OR IMPAIR ANY RIGHT
CONSEQUENT THEREON.
Section 10.
Miscellaneous.
10A.
Commitment Fees; Expenses.
(I)
ON THE CLOSING DATE, THE COMPANY SHALL PAY TO EACH PURCHASER A
COMMITMENT FEE IN AN AMOUNT EQUAL TO 2% OF THE AGGREGATE PRINCIPAL AMOUNT OF THE
NOTES PURCHASED BY SUCH PURCHASER UNDER THIS AGREEMENT AT THE CLOSING (THE
"COMMITMENT FEE AMOUNT").
(II)
EACH MEMBER OF THE COMPANY GROUP AGREES, JOINTLY AND SEVERALLY,
TO PAY, AND HOLD THE PURCHASERS HARMLESS AGAINST ANY LIABILITY FOR THE PAYMENT
OF (A) THE REASONABLE AND DOCUMENTED FEES AND EXPENSES INCURRED BY THE
PURCHASERS AND THEIR LEGAL, ACCOUNTING AND OTHER ADVISORS ARISING IN CONNECTION
WITH THEIR DUE DILIGENCE REVIEW OF THE COMPANY GROUP (INCLUDING EAG), THE
NEGOTIATION AND EXECUTION OF THE COMMITMENT LETTER (AND EXHIBITS AND ANNEXES
ATTACHED THERETO), THIS AGREEMENT AND EACH OF THE OTHER TRANSACTION AGREEMENTS
AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, IN AN
AMOUNT NOT TO EXCEED $250,000, AND (B) THE REASONABLE AND DOCUMENTED FEES AND
EXPENSES INCURRED WITH RESPECT TO ANY RESTATEMENTS, AMENDMENTS OR WAIVERS
(WHETHER OR NOT THE SAME BECOME EFFECTIVE) UNDER OR IN RESPECT OF THIS AGREEMENT
OR ANY OTHER TRANSACTION AGREEMENT.
EACH MEMBER OF THE COMPANY GROUP SHALL PAY,
AND HOLD EACH PURCHASER AND EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING COMMON
STOCK HARMLESS AGAINST LIABILITY FOR THE PAYMENT OF, (1) STAMP AND OTHER SIMILAR
TAXES (BUT EXCLUDING ANY INCOME TAXES OF PURCHASERS) WHICH MAY BE PAYABLE IN
RESPECT OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE ISSUANCE,
DELIVERY OR ACQUISITION OF ANY NOTES OR PUT SECURITIES, AND (2) THE FEES AND
OUT-OF-POCKET EXPENSES INCURRED WITH RESPECT TO THE ENFORCEMENT OF THE RIGHTS
GRANTED UNDER THIS AGREEMENT OR ANY OTHER TRANSACTION AGREEMENT, AND (3) THE
REASONABLE FEES AND EXPENSES INCURRED BY EACH PURCHASER IN MAKING ANY FILING
WITH ANY GOVERNMENTAL ENTITY WITH RESPECT TO ITS INVESTMENT IN THE COMPANY OR IN
ANY OTHER FILING WITH ANY GOVERNMENTAL ENTITY WITH RESPECT TO THE COMPANY WHICH
MENTIONS SUCH PURCHASER.
39
10B.
Remedies; Survival of Representations, Warranties and Covenants;
Indemnification.
(I)
EACH HOLDER OF NOTES, WARRANTS AND UNDERLYING COMMON STOCK SHALL
HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THIS AGREEMENT AND THE OTHER
TRANSACTION AGREEMENTS FOR THE BENEFIT