such other person
as the recipient party shall have specified by prior written notice to the
sending party.
10.5
PURCHASERS' FEES AND EXPENSES.
ON THE INITIAL CLOSING DATE, IN
CONSIDERATION FOR THE SERVICES ABRY PERFORMED IN STRUCTURING AND ARRANGING THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE RELATED DOCUMENTS, THE
COMPANY WILL PAY TO ABRY MEZZANINE PARTNERS L.P. (OR ITS AFFILIATE) A
TRANSACTION FEE EQUAL TO $250,000 IN CONNECTION WITH THE PURCHASE AND SALE OF
THE PREFERRED STOCK AND WARRANTS HEREUNDER (THE "CLOSING FEE"), BY WIRE TRANSFER
OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT INDICATED TO THE COMPANY BY ABRY.
IN ADDITION, THE COMPANY SHALL REIMBURSE ABRY FOR (I) THE REASONABLE FEES AND
EXPENSES OF KIRKLAND & ELLIS LLP INCURRED BY PURCHASERS IN CONNECTION WITH THE
DOCUMENTATION, NEGOTIATION AND CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT AND THE RELATED DOCUMENTS AND (II) ALL OTHER REASONABLE FEES AND
OUT-OF-POCKET EXPENSES INCURRED BY ABRY IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER (COLLECTIVELY, "PURCHASER EXPENSES").
AFTER THE INITIAL
CLOSING DATE, THE COMPANY AGREES TO REIMBURSE THE PURCHASERS FOR ALL FEES AND
EXPENSES (INCLUDING LEGAL FEES OF KIRKLAND & ELLIS LLP) INCURRED IN CONNECTION
WITH ANY FUTURE AMENDMENT TO, WAIVER OF OR THE ENFORCEMENT BY THE PURCHASERS OF
ANY OF THEIR RIGHTS ARISING UNDER THIS AGREEMENT OR ANY OF THE RELATED
DOCUMENTS, OR IN CONNECTION WITH THE REVIEW OF THE COMPANY'S PROXY STATEMENT FOR
ANY MEETING OF THE COMPANY'S STOCKHOLDERS.
IF CRP EXERCISES THE PURCHASE OPTION
WITH RESPECT TO ALL, BUT NOT LESS THAN ALL, OF THE SUBSEQUENT D SHARES AND
SUBSEQUENT D WARRANTS, AT THE SUBSEQUENT CLOSING, THE COMPANY HEREBY AGREES TO
(I) PAY CRP A TRANSACTION FEE EQUAL TO $20,000 (THE "CRP FEE") BY WIRE TRANSFER
OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT INDICATED TO THE COMPANY BY CRP AND
(II) TO REIMBURSE CRP FOR THE REASONABLE FEES AND EXPENSES OF CHOATE, HALL &
STEWART INCURRED IN CONNECTION THEREWITH.
44
10.6
AMENDMENT AND WAIVER.
NO AMENDMENT OR WAIVER OF ANY PROVISION OF
THIS AGREEMENT SHALL BE EFFECTIVE, UNLESS THE SAME SHALL BE IN WRITING AND
SIGNED BY THE COMPANY AND THE HOLDERS OF A MAJORITY OF THE UNDERLYING COMMON
STOCK OUTSTANDING AT THE TIME SUCH AMENDMENT OR WAIVER IS PROPOSED; PROVIDED,
THAT THE AMENDMENT OR WAIVER OF ANY PROVISION OF THIS AGREEMENT THAT
DISPROPORTIONATELY AFFECTS THE RIGHTS OF ANY PURCHASER IN AN ADVERSE MANNER
RELATIVE TO ANY OTHER PURCHASER SHALL REQUIRE THE CONSENT OF SUCH ADVERSELY
AFFECTED PURCHASER.
NO SUCH WAIVER SHALL OPERATE AS A WAIVER OF, OR ESTOPPEL
WITH RESPECT TO, ANY SUBSEQUENT OR OTHER FAILURE.
NO FAILURE BY ANY PARTY TO
TAKE ANY ACTION AGAINST ANY BREACH OF THIS AGREEMENT OR DEFAULT BY ANY OTHER
PARTY SHALL CONSTITUTE A WAIVER OF SUCH PARTY'S RIGHT TO ENFORCE ANY PROVISION
HEREOF OR TO TAKE ANY SUCH ACTION.
10.7
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AGREEMENT.
ANY PARTY