INTO THIS AGREEMENT WITHOUT
RELYING ON ANY STATEMENT BY THE OTHER PARTY WHICH IS NOT SPECIFICALLY SET FORTH
IN THIS AGREEMENT.
11.12
INTERPRETATION OF AGREEMENT.
(A)
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND WORDS OF SIMILAR
IMPORT WHEN USED IN THIS AGREEMENT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO
ANY PARTICULAR PROVISION OF THIS AGREEMENT, AND ARTICLE, SECTION, SCHEDULE AND
EXHIBIT REFERENCES ARE TO THIS AGREEMENT UNLESS OTHERWISE SPECIFIED.
THE
MEANING OF DEFINED TERMS SHALL BE EQUALLY APPLICABLE TO THE SINGULAR AND PLURAL
FORMS OF THE DEFINED TERMS.
THE TERMS "INCLUDE" AND "INCLUDING" ARE NOT
LIMITING AND MEAN "INCLUDING WITHOUT LIMITATION." THE MASCULINE GENDER SHALL
INCLUDE THE FEMININE AND NEUTER GENDERS; THE FEMININE GENDER SHALL INCLUDE THE
MASCULINE AND NEUTER GENDERS; AND THE NEUTER GENDER SHALL INCLUDE THE MASCULINE
AND FEMININE GENDERS.
39
(B)
REFERENCES TO AGREEMENTS AND OTHER DOCUMENTS SHALL BE DEEMED TO
INCLUDE ALL SUBSEQUENT AMENDMENTS AND OTHER MODIFICATIONS THERETO.
(C)
REFERENCES TO STATUTES SHALL INCLUDE ALL REGULATIONS PROMULGATED
THEREUNDER AND REFERENCES TO STATUTES OR REGULATIONS SHALL BE CONSTRUED AS
INCLUDING ALL STATUTORY AND REGULATORY PROVISIONS CONSOLIDATING, AMENDING OR
REPLACING THE STATUTE OR REGULATION.
(D)
THE CAPTIONS AND HEADINGS OF THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT AFFECT THE CONSTRUCTION OF THIS AGREEMENT.
(E)
THE PARTIES PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING
OF THIS AGREEMENT AND THE LANGUAGE USED IN THIS AGREEMENT SHALL BE DEEMED TO BE
THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT.
IF AN
AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THEN THIS AGREEMENT
WILL ACCORDINGLY BE CONSTRUED AS DRAFTED JOINTLY BY THE PARTIES, AND NO
PRESUMPTION OR BURDEN OF PROOF WILL ARISE FAVORING OR DISFAVORING ANY PARTY BY
VIRTUE OF THE AUTHORSHIP OF ANY OF THE PROVISIONS OF THIS AGREEMENT.
(F)
THE ANNEXES, SCHEDULES AND EXHIBITS TO THIS AGREEMENT ARE A
MATERIAL PART HEREOF AND SHALL BE TREATED AS IF FULLY INCORPORATED INTO THE BODY
OF THE AGREEMENT. FOR PURPOSES OF THIS AGREEMENT, WHENEVER THE CONTEXT REQUIRES:
THE SINGULAR NUMBER SHALL INCLUDE THE PLURAL, AND VICE VERSA.
(Signature Page Follows)
40
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement
effective as of the date first written above.
PURCHASER:
MUSICIAN'S FRIEND, INC.
By:
Name:
Title:
Address for Notice:
c/o Guitar Center, Inc.
5795 Lindero Canyon Road
Westlake Village, California 91362
Attention: General Counsel
Fax: (818) 735-4923
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
Attention: Anthony J. Richmond, Esq.
Fax: (650) 463-2600
SELLER:
DENNIS BAMBER, INC., D/B/A THE WOODWIND
& THE BRASSWIND
By:
Name:
Title:
Address for Notice:
Fax:
with a copy (which shall not constitute notice) to:
c/o
Attention:
Fax:
(
)
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