Real, Suite 2001
Attention: Martin J. Waters, Esq.
Telephone: (858) 350-2300
Fax: (858) 350-2399
10.3
ENTIRE AGREEMENT; MODIFICATION; WAIVER.
(A)
THIS AGREEMENT, THE COLLATERAL AGREEMENTS AND THE
SCHEDULES AND EXHIBITS ATTACHED HERETO AND THERETO SET FORTH THE ENTIRE
AGREEMENT OF THE PARTIES WITH RESPECT TO THE MATTERS CONTAINED HEREIN AND NO
PRIOR OR CONTEMPORANEOUS AGREEMENT OR UNDERSTANDING PERTAINING TO ANY SUCH
MATTER SHALL BE EFFECTIVE FOR ANY PURPOSE.
NO SUPPLEMENT, MODIFICATION OR
AMENDMENT TO THIS AGREEMENT SHALL BE BINDING UNLESS EXECUTED IN WRITING BY THE
PARTIES.
NO FAILURE ON THE PART OF ANY PERSON TO EXERCISE ANY POWER, RIGHT,
PRIVILEGE OR REMEDY UNDER THIS AGREEMENT, AND NO DELAY ON THE PART OF ANY PERSON
IN EXERCISING ANY POWER, RIGHT, PRIVILEGE OR REMEDY UNDER THIS AGREEMENT, SHALL
OPERATE AS A WAIVER OF SUCH POWER, RIGHT, PRIVILEGE OR REMEDY; AND NO SINGLE OR
PARTIAL EXERCISE OF ANY SUCH POWER, RIGHT, PRIVILEGE OR REMEDY SHALL PRECLUDE
ANY OTHER OR FURTHER EXERCISE THEREOF OR OF ANY OTHER POWER, RIGHT, PRIVILEGE OR
REMEDY.
NO PERSON SHALL BE DEEMED TO HAVE WAIVED ANY CLAIM ARISING OUT OF THIS
AGREEMENT, OR ANY POWER, RIGHT, PRIVILEGE OR REMEDY UNDER THIS AGREEMENT, UNLESS
THE WAIVER OF SUCH CLAIM, POWER, RIGHT, PRIVILEGE OR REMEDY IS EXPRESSLY SET
FORTH IN A WRITTEN INSTRUMENT DULY EXECUTED AND DELIVERED ON BEHALF OF SUCH
PERSON; AND ANY SUCH WAIVER SHALL NOT BE APPLICABLE OR HAVE ANY EFFECT EXCEPT IN
THE SPECIFIC INSTANCE IN WHICH IT IS GIVEN.
(B)
FOLLOWING THE CLOSING DATE, SELLER SHALL TAKE
REASONABLE STEPS TO MAINTAIN THE CONFIDENTIALITY OF ALL INFORMATION INCLUDED IN
THE GOLD BUSINESS THAT SELLER HELD, OR PURPORTED TO HOLD, AS A TRADE SECRET
PRIOR TO THE CLOSING DATE.
10.4
EXPENSES.
EACH OF THE PARTIES SHALL PAY ALL
COSTS AND EXPENSES INCURRED OR TO BE INCURRED BY IT (INCLUDING, WITHOUT
LIMITATION, ALL FEES RELATED TO ACCOUNTING, LEGAL AND OTHER PROFESSIONAL
SERVICES) IN NEGOTIATING AND PREPARING THIS AGREEMENT, THE COLLATERAL AGREEMENTS
AND THE EXHIBITS HERETO AND THERETO, IN CLOSING AND CARRYING OUT THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE COLLATERAL AGREEMENTS AND THE
EXHIBITS HERETO AND THERETO, AND IN RELATION TO THE TRANSFER OF THE SECURITIES.
10.5
ATTORNEY'S FEES.
IN ANY COURT ACTION AT LAW OR
EQUITY WHICH IS BROUGHT BY ONE OF THE PARTIES TO ENFORCE OR INTERPRET THE
PROVISIONS OF THIS AGREEMENT, THE PREVAILING PARTY WILL BE ENTITLED TO
REASONABLE ATTORNEY'S FEES, IN ADDITION TO ANY OTHER RELIEF TO WHICH THAT PARTY
MAY BE ENTITLED.
10.6
TIME OF THE ESSENCE.
TIME IS OF THE ESSENCE WITH
RESPECT TO THE PERFORMANCE OF THIS AGREEMENT.
10.7
GOVERNING LAW AND CONSTRUCTION.
THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
APPLICABLE LAWS OF THE STATE OF CALIFORNIA WITHOUT
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REGARD TO ANY PRINCIPLES GOVERNING CONFLICTS OF LAWS.
THE PARTIES ACKNOWLEDGE
THAT THEIR RESPECTIVE LEGAL COUNSEL HAVE REVIEWED AND PARTICIPATED IN SETTLING
THE TERMS OF THIS AGREEMENT AND THAT ANY RULE OF CONSTRUCTION TO THE EFFECT THAT
ANY AMBIGUITY IS TO BE RESOLVED AGAINST THE