SHALL BE REIMBURSED BY THE OTHER PARTY
FOR ITS ATTORNEY'S FEES AND OTHER COSTS AND EXPENSES INCURRED WITH THE
INVESTIGATION, PREPARATION AND PROSECUTION OF SUCH PROCEEDING.
7.10.
SURVIVAL.
THE REPRESENTATIONS, WARRANTIES,
AGREEMENTS AND COVENANTS CONTAINED HEREIN SHALL SURVIVE THE CLOSING AND THE
ADDITIONAL CLOSING (IF ANY) AND THE DELIVERY, EXERCISE AND/OR CONVERSION OF THE
SECURITIES, AS APPLICABLE.
7.11.
EXECUTION.
THIS AGREEMENT MAY BE EXECUTED IN TWO
OR MORE COUNTERPARTS, ALL OF WHICH WHEN TAKEN TOGETHER SHALL BE CONSIDERED ONE
AND THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN
SIGNED BY EACH PARTY AND DELIVERED TO THE OTHER PARTY, IT
18
BEING UNDERSTOOD THAT BOTH PARTIES NEED NOT SIGN THE SAME COUNTERPART. IN THE
EVENT THAT ANY SIGNATURE IS DELIVERED BY FACSIMILE TRANSMISSION, SUCH SIGNATURE
SHALL CREATE A VALID AND BINDING OBLIGATION OF THE PARTY EXECUTING (OR ON WHOSE
BEHALF SUCH SIGNATURE IS EXECUTED) THE SAME WITH THE SAME FORCE AND EFFECT AS IF
SUCH FACSIMILE SIGNATURE PAGE WERE AN ORIGINAL THEREOF.
7.12.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT
IS HELD TO BE INVALID OR UNENFORCEABLE IN ANY RESPECT, THE VALIDITY AND
ENFORCEABILITY OF THE REMAINING TERMS AND PROVISIONS OF THIS AGREEMENT SHALL NOT
IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY AND THE PARTIES WILL ATTEMPT TO AGREE
UPON A VALID AND ENFORCEABLE PROVISION THAT IS A REASONABLE SUBSTITUTE
THEREFORE, AND UPON SO AGREEING, SHALL INCORPORATE SUCH SUBSTITUTE PROVISION IN
THIS AGREEMENT.
7.13.
RESCISSION AND WITHDRAWAL RIGHT.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN (AND WITHOUT LIMITING ANY SIMILAR
PROVISIONS OF) THE TRANSACTION DOCUMENTS, WHENEVER THE LENDER EXERCISES A RIGHT,
ELECTION, DEMAND OR OPTION UNDER A TRANSACTION DOCUMENT AND THE BORROWER DOES
NOT TIMELY PERFORM ITS RELATED OBLIGATIONS WITHIN THE PERIODS THEREIN PROVIDED,
THEN THE LENDER MAY RESCIND OR WITHDRAW, IN ITS SOLE DISCRETION FROM TIME TO
TIME UPON WRITTEN NOTICE TO THE BORROWER, ANY RELEVANT NOTICE, DEMAND OR
ELECTION IN WHOLE OR IN PART WITHOUT PREJUDICE TO ITS FUTURE ACTIONS AND RIGHTS.
7.14.
REPLACEMENT OF SECURITIES.
IF ANY CERTIFICATE OR
INSTRUMENT EVIDENCING ANY SECURITIES IS MUTILATED, LOST, STOLEN OR DESTROYED,
THE BORROWER SHALL ISSUE OR CAUSE TO BE ISSUED IN EXCHANGE AND SUBSTITUTION FOR
AND UPON CANCELLATION THEREOF, OR IN LIEU OF AND SUBSTITUTION THEREFORE, A NEW
CERTIFICATE OR INSTRUMENT, BUT ONLY UPON RECEIPT OF EVIDENCE REASONABLY
SATISFACTORY TO THE BORROWER OF SUCH LOSS, THEFT OR DESTRUCTION AND CUSTOMARY
AND REASONABLE INDEMNITY, IF REQUESTED. THE APPLICANTS FOR A NEW CERTIFICATE OR
INSTRUMENT UNDER SUCH CIRCUMSTANCES SHALL ALSO PAY ANY REASONABLE THIRD-PARTY
COSTS ASSOCIATED WITH THE ISSUANCE OF SUCH REPLACEMENT SECURITIES.
7.15.
REMEDIES.
IN ADDITION TO BEING ENTITLED TO
EXERCISE ALL RIGHTS PROVIDED HEREIN OR GRANTED BY LAW, INCLUDING RECOVERY OF
DAMAGES, THE LENDER AND THE BORROWER WILL BE ENTITLED TO SPECIFIC PERFORMANCE
UNDER THE TRANSACTION DOCUMENTS. THE PARTIES AGREE THAT MONETARY DAMAGES MAY NOT
BE ADEQUATE COMPENSATION FOR ANY LOSS INCURRED BY REASON OF ANY BREACH OF
OBLIGATIONS DESCRIBED IN THE FOREGOING SENTENCE AND HEREBY AGREES TO WAIVE IN
ANY ACTION FOR SPECIFIC PERFORMANCE