any rights or remedies under or by reason of this Agreement.
SECTION 10.6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS MADE BY SELLER AND BY
BUYER, RESPECTIVELY, IN THIS AGREEMENT SHALL SURVIVE THE CLOSING DATE HEREUNDER
FOR NINETY (90) MONTHS AND SHALL ALSO SURVIVE AND SHALL BE UNAFFECTED BY (AND
SHALL NOT BE DEEMED WAIVED BY) ANY INVESTIGATION, AUDIT, APPRAISAL, OR
INSPECTION AT ANY TIME MADE BY OR ON BEHALF OF BUYER.
SECTION 10.7
SCHEDULES AND EXHIBITS.
THE SCHEDULES AND
EXHIBITS ATTACHED HERETO SHALL FORM A PART OF THIS AGREEMENT AND ARE HEREBY
INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
SECTION 10.8
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED
IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL
OF WHICH, TOGETHER, SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
SECTION 10.9
CONSTRUCTION OF TERMS.
ANY REFERENCE HEREIN
TO THE MASCULINE OR NEUTER SHALL INCLUDE THE MASCULINE, THE FEMININE AND THE
NEUTER, AND ANY REFERENCE HEREIN TO THE SINGULAR OR PLURAL SHALL INCLUDE THE
OPPOSITE THEREOF.
THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE THAT EACH PARTY AND
COUNSEL TO EACH PARTY HAS PARTICIPATED IN THE DRAFTING OF THIS AGREEMENT AND
AGREE THAT THIS AGREEMENT SHALL NOT BE INTERPRETED AGAINST ONE PARTY OR THE
OTHER BASED UPON WHO DRAFTED IT.
SECTION 10.10
ATTORNEYS' FEES AND COSTS.
UNLESS OTHERWISE
PROVIDED HEREIN TO THE CONTRARY, IN THE EVENT ANY ACTION OR PROCEEDING IS
COMMENCED BY ANY PARTY TO THIS AGREEMENT TO (A) DETERMINE RIGHTS, DUTIES OR
OBLIGATIONS UNDER THIS AGREEMENT, (B) DETERMINE A BREACH OF THIS AGREEMENT AND
OBTAIN DAMAGES AS A RESULT OF SUCH BREACH OR (C) OTHERWISE ENFORCE THIS
AGREEMENT, THE PREVAILING PARTY IN SUCH ACTION OR PROCEEDING SHALL BE ENTITLED
TO RECOVER FROM THE NON-PREVAILING PARTY ALL OF THE PREVAILING PARTY'S
OUT-OF-POCKET COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, ALL REASONABLE
ATTORNEYS' FEES, DISBURSEMENTS AND RELATED CHARGES.
A PARTY WILL BE CONSIDERED
THE PREVAILING PARTY IF (I) IT INITIATED THE LITIGATION AND SUBSTANTIALLY
OBTAINS THE RELIEF IT SOUGHT, EITHER THROUGH A JUDGMENT OR ARBITRATION AWARD OR
THE LOSING PARTY'S VOLUNTARY ACTION BEFORE ARBITRATION, TRIAL, OR JUDGMENT, (II)
THE OTHER PARTY WITHDRAWS ITS ACTION WITHOUT SUBSTANTIALLY OBTAINING THE RELIEF
IT SOUGHT, OR (III) SUCH PARTY DID NOT INITIATE THE LITIGATION AND JUDGMENT IS
ENTERED INTO FOR ANY PARTY, BUT WITHOUT SUBSTANTIALLY GRANTING THE RELIEF SOUGHT
BY THE INITIATING PARTY OR GRANTING MORE SUBSTANTIAL RELIEF TO THE
NON-INITIATING PARTY WITH RESPECT TO ANY COUNTERCLAIM, ASSERTED BY THE
NON-INITIATING PARTY IN CONNECTION WITH SUCH LITIGATION.
SECTION 10.11
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONTROLLED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS AND DECISIONS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE,
WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
SECTION 10.12
FACSIMILE EXECUTION. EACH COUNTERPART OF THIS
AGREEMENT MAY BE EXECUTED AND TRANSMITTED BY FACSIMILE TRANSMISSION.
THE
PARTIES WILL INITIALLY ACCEPT FACSIMILE
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