SECTION 5.5(B) SHALL NOT BE AVAILABLE TO ANY PERSON WHOSE FAILURE TO COMPLY WITH
ITS OBLIGATIONS UNDER THIS AGREEMENT HAS BEEN THE CAUSE OF OR RESULTED IN THE
FAILURE OF THE CLOSING TO OCCUR ON OR BEFORE SUCH TIME;
(C)
BY AN INVESTOR (AS TO ITSELF BUT NO OTHER
INVESTOR) IF IT CONCLUDES IN GOOD FAITH THAT ANY OF THE CONDITIONS PRECEDENT
CONTAINED IN SECTIONS 2.1(D)(IV), (V) OR (VI) SHALL HAVE BEEN BREACHED OR SHALL
NOT BE CAPABLE OF BEING SATISFIED BY THE OUTSIDE DATE DESPITE THE ASSUMED BEST
EFFORTS OF THE COMPANY.
IN THE EVENT OF A TERMINATION PURSUANT TO THIS SECTION, THE COMPANY SHALL
PROMPTLY NOTIFY ALL NON-TERMINATING INVESTORS AND SHALL PAY TO SF CAPITAL
PARTNERS LTD. ALL OF THE FEES AND EXPENSES INCURRED BY SF CAPITAL PARTNERS LTD.
(INCLUDING REASONABLE LEGAL FEES AND EXPENSES) IN CONNECTION WITH THIS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT THROUGH THE TERMINATION
DATE.
OTHER THAN AS TO THE FOREGOING FEES AND EXPENSES, UPON A TERMINATION IN
ACCORDANCE WITH THIS SECTION 5.5, THE COMPANY AND THE TERMINATING INVESTOR(S)
SHALL NOT HAVE ANY FURTHER OBLIGATION OR LIABILITY (INCLUDING AS ARISING FROM
SUCH TERMINATION) TO THE OTHER AND NO INVESTOR WILL HAVE ANY LIABILITY TO ANY
OTHER INVESTOR UNDER THE TRANSACTION DOCUMENTS AS A RESULT THEREFROM.
5.6
CONSTRUCTION.
THE HEADINGS HEREIN ARE FOR
CONVENIENCE ONLY, DO NOT CONSTITUTE A PART OF THIS AGREEMENT AND SHALL NOT BE
DEEMED TO LIMIT OR AFFECT ANY OF THE PROVISIONS HEREOF.
THE LANGUAGE USED IN
THIS AGREEMENT WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO
EXPRESS THEIR MUTUAL INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED
AGAINST ANY PARTY.
THIS AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY
THE PARTIES, AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR
DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY PROVISIONS OF THIS
AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS.
5.7
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
SUCCESSORS AND PERMITTED ASSIGNS.
THE COMPANY MAY NOT ASSIGN THIS AGREEMENT OR
ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
INVESTORS. ANY INVESTOR MAY ASSIGN ANY OR ALL OF ITS RIGHTS UNDER THIS AGREEMENT
TO ANY PERSON TO WHOM SUCH INVESTOR ASSIGNS OR TRANSFERS ANY SECURITIES,
PROVIDED SUCH TRANSFEREE (I) MAKES THE REPRESENTATIONS OF THE ASSIGNING INVESTOR
UNDER THE AGREEMENT, AND (II) AGREES IN WRITING TO BE BOUND, WITH RESPECT TO THE
TRANSFERRED SECURITIES, BY THE PROVISIONS HEREOF THAT APPLY TO THE "INVESTORS."
5.8
NO THIRD-PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY
PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON, EXCEPT AS OTHERWISE SET FORTH
IN SECTION 4.12 (AS TO EACH INVESTOR PARTY).
5.9
GOVERNING LAW.
ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY