THIS AGREEMENT OR THE SECURITY
AND PLEDGE AGREEMENTS WILL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT
OR THE SECURITY AND PLEDGE AGREEMENTS, THE ISSUANCE, SALE AND DELIVERY OF THE
NOTES AND WARRANTS, AND WITH RESPECT TO THE NOTES, UNTIL THE REPAYMENT OF THE
NOTES IN FULL.
SECTION 7.03.
BROKERAGE. EACH PARTY HERETO
WILL INDEMNIFY AND HOLD HARMLESS THE OTHERS AGAINST AND IN RESPECT OF ANY CLAIM
FOR BROKERAGE OR OTHER COMMISSIONS RELATIVE TO THIS AGREEMENT OR TO THE
TRANSACTIONS CONTEMPLATED HEREBY, BASED IN ANY WAY ON AGREEMENTS, ARRANGEMENTS
OR UNDERSTANDINGS MADE OR CLAIMED TO HAVE BEEN MADE BY SUCH PARTY WITH ANY THIRD
PARTY.
SECTION 7.04.
PARTIES IN INTEREST. ALL
REPRESENTATIONS, COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT BY OR ON
BEHALF OF ANY OF THE PARTIES HERETO WILL BIND AND INURE TO THE BENEFIT OF THE
RESPECTIVE SUCCESSORS AND ASSIGNS OF THE PARTIES HERETO WHETHER SO EXPRESSED OR
NOT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL REPRESENTATIONS,
COVENANTS AND AGREEMENTS BENEFITING THE PURCHASERS WILL INURE TO THE BENEFIT OF
ANY AND ALL SUBSEQUENT HOLDERS FROM TIME TO TIME OF NOTES AND WARRANTS.
SECTION 7.05.
NOTICES. ALL NOTICES, REQUESTS,
CONSENTS AND OTHER COMMUNICATIONS HEREUNDER WILL BE IN WRITING AND WILL BE
DELIVERED IN PERSON, MAILED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT
REQUESTED, OR SENT BY TELECOPIER OR RECOGNIZED OVERNIGHT COURIER SERVICE,
ADDRESSED AS FOLLOWS:
if to the Company:
19700 Fairchild Road, Suite 230
Irvine, California 92612
fax: (949) 955-0086
Attention: Chief Financial Officer
with a copy to:
Christopher Ivey, Esq.
Stradling Yocca Carlson & Rauth
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
fax: (949) 725-4100
If to any Purchaser, at the address of such Purchaser set forth in Schedule I,
and
If to Lloyd I. Miller, III, with a copy to:
Paul N. Silverstein, Esq.
Andrews Kurth LLP
450 Lexington Avenue
New York, NY 10017
fax: (212) 850-2929
If to SACC Partners LP, with a copy to:
Peter J. Tennyson, Esq.
Paul, Hastings, Janofsky & Walker LLP
695 Town Center Drive, 17th Floor
Costa Mesa, CA 92626
fax: (714) 668-6337
SECTION 7.06.
GOVERNING LAW. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REGARD FOR CONFLICTS OF LAWS OR CHOICE OF LAWS
PRINCIPLES.
25
SECTION 7.07.
ENTIRE AGREEMENT. THIS
AGREEMENT, INCLUDING THE SCHEDULES AND EXHIBITS HERETO, ALONG WITH THE NOTES,
THE WARRANTS AND THE SECURITY AND PLEDGE AGREEMENTS, CONSTITUTES THE SOLE AND
ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ALL
SCHEDULES AND EXHIBITS HERETO ARE HEREBY INCORPORATED HEREIN BY REFERENCE. THERE
ARE NO OTHER AGREEMENTS OF THE PARTIES AND NO PARTY IS RELYING ON ANY
REPRESENTATIONS OF THE OTHER NOT EXPRESSLY SET FORTH HEREIN OR ANY ANCILLARY
DOCUMENT RELATED HERETO OR THERETO. ALL SCHEDULES AND EXHIBITS HEREBY ARE HEREBY
INCORPORATED HEREIN BY REFERENCE.
SECTION 7.08.
COUNTERPARTS. THIS AGREEMENT
MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH WILL BE DEEMED AN
ORIGINAL, BUT ALL OF