COMPANY AND THE OTHER PURCHASERS, BY
WRITTEN NOTICE TO THE OTHER PARTIES, IF THE
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CLOSING HAS NOT BEEN CONSUMMATED ON OR BEFORE NOVEMBER 22, 2006; PROVIDED,
HOWEVER, THAT NO SUCH TERMINATION WILL AFFECT THE RIGHT OF ANY PARTY TO SUE FOR
ANY BREACH BY THE OTHER PARTY (OR PARTIES).
5.2
FEES AND EXPENSES.
THE COMPANY SHALL REIMBURSE AMERICA'S GROWTH
CAPITAL, LLC ("AGC"), FOR ITS FEES AND EXPENSES INCURRED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED IN THE TRANSACTION DOCUMENTS.
THE COMPANY SHALL
DELIVER, PRIOR TO THE CLOSING, A COMPLETED AND EXECUTED COPY OF THE CLOSING
STATEMENT, ATTACHED HERETO AS ANNEX A.
EXCEPT AS EXPRESSLY SET FORTH IN THE
TRANSACTION DOCUMENTS TO THE CONTRARY, EACH PARTY SHALL PAY THE FEES AND
EXPENSES OF ITS ADVISERS, COUNSEL, ACCOUNTANTS AND OTHER EXPERTS, IF ANY, AND
ALL OTHER EXPENSES INCURRED BY SUCH PARTY INCIDENT TO THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT.
THE COMPANY
SHALL PAY ALL TRANSFER AGENT FEES, STAMP TAXES AND OTHER TAXES AND DUTIES LEVIED
IN CONNECTION WITH THE DELIVERY OF ANY SECURITIES TO THE PURCHASERS.
5.3
ENTIRE AGREEMENT.
THE TRANSACTION DOCUMENTS, TOGETHER WITH THE
EXHIBITS AND SCHEDULES THERETO, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT TO SUCH MATTERS, WHICH THE PARTIES
ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH DOCUMENTS, EXHIBITS AND SCHEDULES.
5.4
NOTICES.
ANY AND ALL NOTICES OR OTHER COMMUNICATIONS OR
DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER SHALL BE IN WRITING
AND SHALL BE DEEMED GIVEN AND EFFECTIVE ON THE EARLIEST OF (A) THE DATE OF
TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA FACSIMILE AT THE
FACSIMILE NUMBER SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO PRIOR TO 5:30
P.M. (NEW YORK CITY TIME) ON A TRADING DAY, (B) THE NEXT TRADING DAY AFTER THE
DATE OF TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA FACSIMILE
AT THE FACSIMILE NUMBER SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO ON A
DAY THAT IS NOT A TRADING DAY OR LATER THAN 5:30 P.M. (NEW YORK CITY TIME) ON
ANY TRADING DAY, (C) THE 2ND TRADING DAY FOLLOWING THE DATE OF MAILING, IF SENT
BY U.S. NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE, OR (D) UPON ACTUAL
RECEIPT BY THE PARTY TO WHOM SUCH NOTICE IS REQUIRED TO BE GIVEN.
THE ADDRESS
FOR SUCH NOTICES AND COMMUNICATIONS SHALL BE AS SET FORTH ON THE SIGNATURE PAGES
ATTACHED HERETO.
A NOTICE DELIVERED TO THE PURCHASERS MUST BE DELIVERED TO EACH
PURCHASER HERETO IN ACCORDANCE WITH THIS SECTION 5.4.
5.5
AMENDMENTS; WAIVERS.
NO PROVISION OF THIS AGREEMENT MAY BE WAIVED
OR AMENDED EXCEPT IN A WRITTEN INSTRUMENT SIGNED, IN THE CASE OF AN AMENDMENT,
BY THE COMPANY AND PURCHASERS SUBSCRIBING FOR AT LEAST A MAJORITY OF THE
SECURITIES OR, IN THE CASE OF A WAIVER, BY THE PARTY AGAINST WHOM ENFORCEMENT OF
ANY SUCH WAIVED PROVISION IS SOUGHT.
NO WAIVER OF ANY DEFAULT WITH RESPECT TO
ANY PROVISION,