IT
IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY
NOT BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF
MAY NOT BE APPROPRIATE OR THAT THIS AGREEMENT MAY NOT BE ENFORCED IN OR BY SUCH
COURTS, AND THE PARTIES IRREVOCABLY AGREE THAT ALL CLAIMS WITH RESPECT TO SUCH
ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN SUCH COURTS.
THE PARTIES
HEREBY CONSENT TO AND GRANT ANY SUCH COURT'S JURISDICTION OVER THE PERSON OF
SUCH PARTIES AND OVER THE SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING
OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN
THE MANNER PROVIDED IN SECTION 10.1, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED
BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
SECTION 10.6
WAIVER OF JURY TRIAL.
EACH OF BUYER AND SELLER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF BUYER
OR SELLER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
SECTION 10.7
ASSIGNMENT.
NEITHER THIS AGREEMENT, ANY AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED AND
DELIVERED PURSUANT HERETO OR IN CONNECTION WITH THE CLOSING, NOR ANY OF THE
RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER OR THEREUNDER SHALL BE ASSIGNED BY
ANY OF THE PARTIES HERETO (WHETHER BY OPERATION OF LAW OR OTHERWISE) WITHOUT THE
PRIOR WRITTEN CONSENT OF THE
52
OTHER PARTY; PROVIDED, HOWEVER, THAT BUYER MAY ASSIGN ANY OF ITS RIGHTS UNDER
THIS AGREEMENT OR IN ANY AGREEMENT, DOCUMENT OR INSTRUMENT EXECUTED AND
DELIVERED PURSUANT HERETO OR IN CONNECTION WITH THE CLOSING (A) TO ONE OR MORE
BANKS OR OTHER LENDERS WHICH PROVIDE FINANCING TO BUYER FROM TIME TO TIME,
(B) TO ANY SUCCESSOR TO ALL OR SUBSTANTIALLY ALL OF ITS BUSINESS AND ASSETS
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND (C) TO ONE OR MORE
SUBSIDIARIES (INCLUDING SUBSIDIARIES OF SUBSIDIARIES) OF BUYER.
ANY ASSIGNMENT
IN VIOLATION OF THIS AGREEMENT SHALL BE DEEMED A BREACH HEREOF FOR WHICH BUYER
SHALL BE ENTITLED TO RETAIN ALL AMOUNTS THAT WOULD OTHERWISE BE PAYABLE BY BUYER
HEREUNDER AS LIQUIDATED DAMAGES AND NOT AS A PENALTY.
SUBJECT TO THE FOREGOING,
THIS AGREEMENT WILL BE BINDING UPON, INURE TO THE BENEFIT OF AND BE ENFORCEABLE
BY THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 10.8
SEVERABILITY.
IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT OR THE APPLICATION THEREOF,
BECOMES OR IS DECLARED BY A COURT OF COMPETENT JURISDICTION TO BE ILLEGAL, VOID
OR UNENFORCEABLE, THE REMAINDER OF THIS AGREEMENT WILL CONTINUE IN FULL FORCE
AND EFFECT AND THE APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR
CIRCUMSTANCES WILL BE INTERPRETED SO AS REASONABLY TO EFFECT THE INTENT OF THE
PARTIES HERETO.
THE PARTIES FURTHER AGREE TO REPLACE SUCH VOID OR UNENFORCEABLE
PROVISION OF THIS AGREEMENT WITH A VALID AND ENFORCEABLE PROVISION THAT WILL
ACHIEVE, TO THE EXTENT POSSIBLE, THE