MATTER OF SUCH REPRESENTATION, (B) SUCH
ITEM IS OTHERWISE SPECIFICALLY SET FORTH ON THE BALANCE SHEET OR FINANCIAL
STATEMENTS OR (C) SUCH ITEM IS REFLECTED ON THE BALANCE SHEET OR FINANCIAL
STATEMENTS AND IS SPECIFICALLY SET FORTH IN THE NOTES THERETO.
SECTION 8.4
RULES OF CONSTRUCTION.
THE
PARTIES HAVE PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS
AGREEMENT.
IN THE EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION
ARISES, 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.
SECTION 8.5
COUNTERPARTS.
THIS AGREEMENT
MAY BE EXECUTED IN MULTIPLE COUNTERPARTS, ALL OF WHICH SHALL TOGETHER BE
CONSIDERED ONE AND THE SAME AGREEMENT.
54
SECTION 8.6
ENTIRE AGREEMENT; THIRD PARTY
BENEFICIARIES.
THIS AGREEMENT (INCLUDING THE DOCUMENTS AND THE INSTRUMENTS
REFERRED TO HEREIN), THE CONFIDENTIALITY AGREEMENT ENTERED INTO BY BUYER AND
SELLERS AND THE SCHEDULES ATTACHED HERETO (A) CONSTITUTE THE ENTIRE AGREEMENT,
EXCEPT AS PROVIDED HEREIN, AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, BOTH WRITTEN AND ORAL, AMONG THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, AND (B) EXCEPT AS PROVIDED HEREIN, ARE NOT INTENDED TO
CONFER UPON ANY PERSON OTHER THAN THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS ANY RIGHTS OR REMEDIES HEREUNDER.
SECTION 8.7
SEVERABILITY.
IF ANY TERM,
PROVISION, COVENANT OR RESTRICTION OF THIS AGREEMENT IS HELD BY A COURT OF
COMPETENT JURISDICTION OR OTHER AUTHORITY TO BE INVALID, VOID, UNENFORCEABLE OR
AGAINST ITS REGULATORY POLICY, THE REMAINDER OF THE TERMS, PROVISIONS, COVENANTS
AND RESTRICTIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND
SHALL IN NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED.
SECTION 8.8
GOVERNING LAW.
THIS AGREEMENT
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING NEW YORK OBLIGATIONS LAW SECTIONS 5-1401 (CHOICE OF LAW) AND
5-1402 (CHOICE OF FORUM), APPLICABLE TO CONTRACTS TO BE MADE AND PERFORMED
ENTIRELY THEREIN WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF OR OF ANY OTHER JURISDICTION.
SECTION 8.9
CONSENT TO JURISDICTION; WAIVER
OF JURY TRIAL.
(A)
EACH OF THE PARTIES HERETO SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN, OF THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT.
EACH OF THE
PARTIES HERETO WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF
ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY, OR OTHER
SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING IN THE COURTS OF ANY JURISDICTION.
ANY
PARTY HERETO MAY MAKE SERVICE ON ANY OTHER PARTY BY