STATE OF
NEW YORK.
EACH OF THE PARTIES HEREBY AGREES THAT ANY ACTION, PROCEEDING OR
CLAIM AGAINST IT ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL
BE BROUGHT AND ENFORCED IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND IRREVOCABLY
SUBMITS TO SUCH JURISDICTION, WHICH JURISDICTION SHALL BE EXCLUSIVE.
EACH OF
THE PARTIES HEREBY WAIVES ANY OBJECTION TO SUCH EXCLUSIVE JURISDICTION AND THAT
SUCH COURTS REPRESENT AN INCONVENIENT FORUM AND IRREVOCABLY WAIVES TRIAL BY
JURY.
13.
REMEDIES.
EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES
THAT, IN THE EVENT OF ANY BREACH OF ANY COVENANT OR AGREEMENT CONTAINED IN THIS
AGREEMENT BY THE OTHER PARTY, MONEY DAMAGES MAY BE INADEQUATE WITH RESPECT TO
ANY SUCH BREACH AND THE NON-BREACHING PARTY MAY HAVE NO ADEQUATE REMEDY AT LAW.
IT IS ACCORDINGLY AGREED THAT EACH OF THE PARTIES HERETO SHALL BE ENTITLED, IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY,
TO SEEK INJUNCTIVE RELIEF AND/OR TO COMPEL SPECIFIC PERFORMANCE TO PREVENT
BREACHES BY THE OTHER PARTY HERETO OF ANY COVENANT OR AGREEMENT OF SUCH OTHER
PARTY CONTAINED IN THIS AGREEMENT.
14.
BINDING EFFECT; ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE LEGAL
REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS.
THIS AGREEMENT SHALL NOT BE
ASSIGNED BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY
HERETO, EXCEPT THAT SELLER MAY ASSIGN ANY OF ITS RIGHTS AND INTERESTS TO ANY
PERSON OR ENTITY, WITH BUYER'S PRIOR WRITTEN CONSENT (WHICH CONSENT WILL NOT BE
UNREASONABLY WITHHELD) PROVIDED THAT THE PERFORMANCE REQUIRED OF SELLER
HEREUNDER WILL NOT BE IMPAIRED.
7
15.
HEADINGS.
THE DESCRIPTIVE HEADINGS OF THE SECTIONS HEREOF ARE
INSERTED FOR CONVENIENCE ONLY AND DO NOT CONSTITUTE A PART OF THIS AGREEMENT.
16.
ENTIRE AGREEMENT; CHANGES IN WRITING.
THIS AGREEMENT CONSTITUTES
THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDES AND CANCELS ANY
PRIOR AGREEMENTS, REPRESENTATIONS, WARRANTIES, WHETHER ORAL OR WRITTEN, AMONG
THE PARTIES HERETO RELATING TO THE TRANSACTION CONTEMPLATED HEREBY.
NEITHER
THIS AGREEMENT NOT ANY PROVISION HEREOF MAY BE CHANGED OR AMENDED ORALLY, BUT
ONLY BY AN AGREEMENT IN WRITING SIGNED BY THE OTHER PARTY HERETO.
17.
MAXIMUM PAYMENTS.
NOTHING CONTAINED HEREIN SHALL BE DEEMED TO
ESTABLISH OR REQUIRE THE PAYMENT OF A RATE OF INTEREST OR OTHER CHARGES IN
EXCESS OF THE MAXIMUM RATE PERMITTED BY APPLICABLE LAW.
IN THE EVENT THAT THE
RATE OF INTEREST REQUIRED TO BE PAID OR OTHER CHARGES HEREUNDER EXCEED THE
MAXIMUM RATE PERMITTED BY APPLICABLE LAW, ANY PAYMENTS IN EXCESS OF SUCH MAXIMUM
RATE SHALL BE CREDITED AGAINST AMOUNTS OWED BY BUYER OR THE INSIDERS TO THE
SELLER AND THUS REFUNDED TO BUYER OR THE INSIDERS, AS APPLICABLE.
[signatures on following page]
8
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set forth on the first page of this Agreement.
PROSPECT