THE AGREEMENTS AND COVENANTS SET
FORTH IN SECTIONS 4, 5, 6 AND 10, AND THE INDEMNIFICATION AND CONTRIBUTION
PROVISIONS SET FORTH IN SECTION 9, SHALL SURVIVE THE CLOSING IN ACCORDANCE WITH
THEIR TERMS.
EACH BUYER SHALL BE RESPONSIBLE ONLY FOR ITS OWN REPRESENTATIONS,
WARRANTIES, AGREEMENTS AND COVENANTS HEREUNDER.
THE COMPANY ACKNOWLEDGES AND
AGREES THAT THE PROVISIONS OF SECTION 16 OF THE NOTES SHALL SURVIVE THE
REDEMPTION, REPAYMENT OR SURRENDER OF SUCH NOTE.
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 THE 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.
TERMINATION.
IN THE EVENT THAT THE
CLOSING SHALL NOT HAVE OCCURRED WITH RESPECT TO A BUYER ON OR BEFORE THE THIRD
(3RD) BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT DUE TO THE COMPANY'S OR
SUCH BUYER'S FAILURE TO SATISFY THE CONDITIONS SET FORTH IN SECTIONS 7 AND 8
ABOVE (AND THE NONBREACHING PARTY'S FAILURE TO WAIVE SUCH UNSATISFIED
CONDITION(S)), THE NONBREACHING PARTY SHALL HAVE THE OPTION TO TERMINATE THIS
AGREEMENT WITH RESPECT TO SUCH BREACHING PARTY AT THE CLOSE OF BUSINESS ON SUCH
DATE WITHOUT LIABILITY OF ANY PARTY TO ANY OTHER PARTY.
L.
PLACEMENT AGENT.
THE COMPANY
REPRESENTS AND WARRANTS TO EACH BUYER THAT IT HAS NOT ENGAGED ANY PLACEMENT
AGENT, BROKER OR FINANCIAL ADVISOR IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY. THE COMPANY SHALL PAY, AND HOLD EACH BUYER HARMLESS
AGAINST, ANY LIABILITY, LOSS OR EXPENSE (INCLUDING ATTORNEYS' FEES AND
OUT-OF-POCKET EXPENSES) ARISING IN CONNECTION WITH ANY CLAIM FOR ANY PAYMENT BY
ANY PLACEMENT AGENT, BROKER OR FINANCIAL ADVISOR.
M.
NO STRICT CONSTRUCTION.
THE LANGUAGE USED
IN THIS AGREEMENT WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO
EXPRESS THEIR MUTUAL INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED
AGAINST ANY PARTY.
N.
REMEDIES.
EACH BUYER AND EACH HOLDER OF
THE SECURITIES SHALL HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THE TRANSACTION
DOCUMENTS AND ALL RIGHTS AND REMEDIES THAT SUCH BUYER AND HOLDERS HAVE BEEN
GRANTED AT ANY TIME UNDER ANY OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS
THAT SUCH BUYER AND HOLDERS HAVE UNDER ANY LAW.
ANY PERSON HAVING ANY RIGHTS
UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS
SPECIFICALLY (WITHOUT POSTING A BOND OR OTHER SECURITY OR PROVING ACTUAL
DAMAGES), TO RECOVER DAMAGES BY
38
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law, or in equity.
O.
RESCISSION AND WITHDRAWAL RIGHT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN (AND WITHOUT LIMITING ANY
SIMILAR PROVISIONS OF) THE TRANSACTION DOCUMENTS, WHENEVER ANY BUYER EXERCISES A
RIGHT, ELECTION, DEMAND OR OPTION UNDER A TRANSACTION DOCUMENT AND THE COMPANY
OR ANY OF ITS SUBSIDIARIES DOES NOT TIMELY