PERMITTED BY LAW, AND THE VALIDITY OF THE REMAINING PROVISIONS HEREOF
SHALL NOT BE AFFECTED THEREBY.
11.15
PRIOR NEGOTIATIONS; CONSTRUCTION.
NO NEGOTIATIONS
CONCERNING OR MODIFICATIONS MADE TO PRIOR DRAFTS OF THIS AGREEMENT SHALL BE
CONSTRUED IN ANY MANNER TO LIMIT, REDUCE OR IMPAIR THE RIGHTS, REMEDIES, DUTIES
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT OR TO RESTRICT OR EXPAND THE
MEANING OF ANY OF THE PROVISIONS OF THIS AGREEMENT OR TO CONSTRUE ANY OF THE
PROVISIONS OF THIS AGREEMENT IN ANY PARTY'S FAVOR. THE PARTIES ACKNOWLEDGE THAT
EACH PARTY AND ITS COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE
NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE
RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION
OF THIS AGREEMENT OR ANY AMENDMENT, SCHEDULE OR EXHIBIT HERETO.
11.16
LITIGATION EXPENSES.
IF ANY ACTION IS BROUGHT BY
EITHER PARTY AGAINST THE OTHER PARTY RELATING TO OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER TRANSACTION DESCRIBED HEREIN, THE PREVAILING PARTY SHALL
BE ENTITLED TO RECOVER FROM THE OTHER PARTY REASONABLE ATTORNEYS' FEES, COSTS
AND EXPENSES INCURRED IN CONNECTION WITH THE PROSECUTION AND DEFENSE OF SUCH
ACTION.
IN THE EVENT THAT SELLER, ON THE ONE HAND, OR PURCHASER, ON THE OTHER
HAND, EMPLOYS ANY ACCOUNTANT, INVESTMENT BANK OR OTHER THIRD-PARTY ADVISER OR
CONSULTANT IN CONNECTION WITH ANY LITIGATION, ARBITRATION, MEDIATION OR OTHER
ACTION OR PROCEEDING BETWEEN THE PARTIES HERETO ARISES OUT OF THIS AGREEMENT OR
ANY OTHER TRANSACTION, EACH PARTY SHALL BEAR ITS OWN COSTS AND EXPENSES INCURRED
IN CONNECTION THEREWITH.
65
11.17
NO RECORDATION.
EACH OF SELLER AND PURCHASER AGREES
THAT NEITHER THIS AGREEMENT NOR ANY MEMORANDUM OR NOTICE HEREOF SHALL BE
RECORDED AND THAT OTHER THAN IN CONNECTION WITH AN ACTION FOR SPECIFIC
PERFORMANCE COMMENCED BY PURCHASER AS PERMITTED IN SECTION 10.2, PURCHASER
AGREES (A) NOT TO FILE ANY NOTICE OF PENDENCY OR OTHER INSTRUMENT AGAINST THE
PROPERTIES OR ANY PORTION THEREOF IN CONNECTION HEREWITH AND (B) TO INDEMNIFY
EACH SELLER AGAINST ALL COSTS, EXPENSES AND DAMAGES, INCLUDING, WITHOUT
LIMITATION, REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS, INCURRED BY EACH
SELLER BY REASON OF THE FILING BY PURCHASER OF SUCH NOTICE OF PENDENCY OR OTHER
INSTRUMENT IN BREACH OF THE TERMS OF THIS SECTION 11.17.
11.18
COMPETITIVE ACTIVITIES.
NOTHING HEREIN SHALL BE
CONSTRUED AS RESTRICTING OR LIMITING IN ANY WAY EITHER SELLER, ITS PRINCIPALS,
AFFILIATES, OR ANY PARTNER, MEMBER OR SHAREHOLDER OF ANY OF THEM, FROM ENGAGING
IN ACTIVITIES THAT MAY BE DEEMED TO BE COMPETITIVE WITH THE PROPERTIES OR ANY
OTHER BUSINESS ACTIVITIES CURRENTLY CONDUCTED OR TO BE CONDUCTED BY PURCHASER OR
ANY OF ITS AFFILIATES ON OR AFTER THE DATE HEREOF.
11.19
WAIVER OF TRIAL BY JURY.
EACH OF SELLER AND PURCHASER
HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY SELLER OR THE PURCHASER,
WHETHER IN CONTRACT, TORT OR OTHERWISE, WHICH RIGHT OR CLAIM RELATES DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, ANY DOCUMENTATION RELATED