WAIVED,
SUPPLEMENTED, DISCHARGED, CANCELLED OR TERMINATED ORALLY OR BY ANY COURSE OF
DEALING, OR IN ANY MANNER OTHER THAN BY AN AGREEMENT IN WRITING, SIGNED BY THE
PARTY TO BE CHARGED.
NOTHING CONTAINED IN THIS AGREEMENT, ANY ANCILLARY
AGREEMENT OR IN ANY DOCUMENT REFERRED TO HEREIN OR DELIVERED IN CONNECTION
HEREWITH SHALL BE DEEMED TO ESTABLISH OR REQUIRE THE PAYMENT OF A RATE OF
INTEREST OR OTHER CHARGES IN EXCESS OF THE MAXIMUM RATE PERMITTED BY APPLICABLE
LAW.
IN THE EVENT THAT THE RATE OF INTEREST OR DIVIDENDS REQUIRED TO BE PAID OR
OTHER CHARGES HEREUNDER EXCEED THE MAXIMUM RATE PERMITTED BY SUCH LAW, ANY
PAYMENTS IN EXCESS OF SUCH MAXIMUM SHALL BE CREDITED AGAINST AMOUNTS OWED BY THE
COMPANIES TO LAURUS AND THUS REFUNDED TO THE COMPANIES.
33.
SEVERABILITY.
WHEREVER POSSIBLE EACH
PROVISION OF THIS AGREEMENT OR THE ANCILLARY AGREEMENTS SHALL BE INTERPRETED IN
SUCH MANNER AS TO BE EFFECTIVE AND VALID UNDER APPLICABLE LAW, BUT IF ANY
PROVISION OF THIS AGREEMENT OR THE ANCILLARY AGREEMENTS SHALL BE PROHIBITED BY
OR INVALID UNDER APPLICABLE LAW SUCH PROVISION SHALL BE INEFFECTIVE TO THE
EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS THEREOF.
34.
SURVIVAL.
THE REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS MADE HEREIN SHALL SURVIVE ANY INVESTIGATION MADE BY
LAURUS AND THE CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREBY TO THE EXTENT
PROVIDED THEREIN.
ALL STATEMENTS AS TO FACTUAL MATTERS CONTAINED IN ANY
CERTIFICATE OR OTHER INSTRUMENT DELIVERED BY OR ON BEHALF OF THE COMPANIES
PURSUANT HERETO IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE
DEEMED TO BE REPRESENTATIONS AND WARRANTIES BY THE COMPANIES HEREUNDER SOLELY AS
OF THE DATE OF SUCH CERTIFICATE OR INSTRUMENT.
ALL INDEMNITIES SET FORTH HEREIN
SHALL SURVIVE THE EXECUTION, DELIVERY
40
AND TERMINATION OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS AND THE MAKING
AND REPAYING OF THE OBLIGATIONS.
35.
CAPTIONS.
ALL CAPTIONS ARE AND SHALL BE
WITHOUT SUBSTANTIVE MEANING OR CONTENT OF ANY KIND WHATSOEVER.
36.
COUNTERPARTS; TELECOPIER SIGNATURES.
THIS
AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL
CONSTITUTE AN ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND
THE SAME AGREEMENT.
ANY SIGNATURE DELIVERED BY A PARTY VIA TELECOPIER
TRANSMISSION SHALL BE DEEMED TO BE ANY ORIGINAL SIGNATURE HERETO.
37.
CONSTRUCTION.
THE PARTIES ACKNOWLEDGE THAT
EACH PARTY AND ITS COUNSEL HAVE REVIEWED THIS AGREEMENT AND THAT THE NORMAL
RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED
AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS
AGREEMENT OR ANY AMENDMENTS, SCHEDULES OR EXHIBITS THERETO.
38.
PUBLICITY.
EACH COMPANY HEREBY AUTHORIZES
LAURUS TO MAKE APPROPRIATE ANNOUNCEMENTS OF THE FINANCIAL ARRANGEMENT ENTERED
INTO BY AND AMONG EACH COMPANY AND LAURUS, INCLUDING, WITHOUT LIMITATION,
ANNOUNCEMENTS WHICH ARE COMMONLY KNOWN AS TOMBSTONES, IN SUCH PUBLICATIONS AND
TO SUCH SELECTED PARTIES AS LAURUS SHALL IN ITS SOLE AND ABSOLUTE DISCRETION
DEEM APPROPRIATE, OR AS REQUIRED BY APPLICABLE LAW.
39.
JOINDER.
IT IS UNDERSTOOD AND AGREED