OUT OF THE GAMING BOARD'S DECISION ON THE MERGER.
7.
NOTWITHSTANDING THE FOREGOING, THE
GAMING BOARD AND PENH RESERVE THEIR RIGHTS TO ENFORCE THE TERMS OF THIS
AGREEMENT.
8.
THE PARTIES HERETO REPRESENT AND
WARRANT TO, AND AGREE WITH THE OTHERS AS FOLLOWS:
(A)
EACH PARTY HAS RECEIVED INDEPENDENT LEGAL
ADVICE FROM ITS OWN ATTORNEYS WITH RESPECT TO THE ADVISABILITY OF MAKING THE
SETTLEMENT PROVIDED FOR HEREIN, AND WITH RESPECT TO THE ADVISABILITY OF
EXECUTING THIS AGREEMENT.
EACH PARTY HAS CONTRIBUTED TO THE DRAFTING OF THIS
AGREEMENT AND, THEREFORE, THE AGREEMENT SHALL NOT BE CONSTRUED AGAINST EITHER
PARTY.
(B)
NO PARTY (NOR ANY AGENT, ASSOCIATE,
REPRESENTATIVE, OR ATTORNEY OF OR FOR ANY OTHER PARTY), HAS MADE ANY STATEMENT
OR REPRESENTATION TO ANY OTHER PARTY REGARDING ANY FACT RELIED UPON BY THE OTHER
PARTY IN ENTERING INTO THIS AGREEMENT, AND NO PARTY HERETO RELIES UPON ANY
STATEMENT, REPRESENTATION OR PROMISE OF ANY OTHER PARTY (OR OF ANY AGENT,
ASSOCIATE, REPRESENTATIVE OR ATTORNEY OF OR FOR ANY OTHER PARTY), IN EXECUTING
THIS AGREEMENT, OR IN MAKING THE SETTLEMENT PROVIDED FOR HEREIN, EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT.
(C)
EACH PARTY, AND ITS ATTORNEY, HAS MADE SUCH
INVESTIGATION OF THE FACTS PERTAINING TO THIS AGREEMENT, AND HAS ALL INFORMATION
WITH RESPECT TO ALL THE MATTERS PERTAINING THERETO, AS HE, SHE OR IT DEEMS
NECESSARY TO MAKE A FINAL AND BINDING DECISION TO EXECUTE THIS AGREEMENT AND
ABIDE BY THE PROVISIONS HEREIN.
(D)
THIS AGREEMENT HAS BEEN CAREFULLY READ BY
ALL PARTIES, THE CONTENTS HEREOF ARE KNOWN AND UNDERSTOOD BY ALL PARTIES, AND IT
IS SIGNED FREELY BY EACH PERSON OR ENTITY EXECUTING THIS AGREEMENT;
(E)
THE TERMS OF THIS AGREEMENT ARE
CONTRACTUAL, NOT A MERE RECITAL, AND ARE THE RESULT OF NEGOTIATION AMONG ALL THE
PARTIES.
2
(F)
EACH PARTY HERETO RELIES ON THE FINALITY
OF THIS AGREEMENT AS A MATERIAL FACTOR INDUCING THAT PARTY'S EXECUTION OF THIS
AGREEMENT, AND THE OBLIGATIONS ASSUMED BY THIS AGREEMENT.
9.
THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR SUCCESSORS AND
ASSIGNS.
NO PERSON OR ENTITY IS, OR IS INTENDED TO BE, A THIRD-PARTY
BENEFICIARY OF THIS AGREEMENT.
10.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN
EXECUTED AND DELIVERED WITHIN THE STATE OF ILLINOIS, AND THE LAWS OF THE STATE
OF ILLINOIS SHALL APPLY TO THE INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT
WITHOUT REFERENCE TO THE CHOICE OF LAW RULES THEREOF.
11.
EACH SIGNATORY TO THIS AGREEMENT HEREBY
REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED TO ACT ON BEHALF OF THE PARTY
OR PARTIES HE/SHE PURPORTS TO REPRESENT OR UPON WHOSE BEHALF HE/SHE PURPORTS TO
ACT AND SHALL SUBMIT DOCUMENTATION SUPPORTING SUCH REPRESENTATION.
12.
IN ANY ACTION BY THE GAMING BOARD TO ENFORCE
THIS AGREEMENT, THE GAMING BOARD SHALL BE ENTITLED TO AN AWARD OF REASONABLE
ATTORNEYS' FEES AND COSTS IN CONNECTION WITH THOSE PROCEEDINGS.
13.
IN ANY ACTION BY PENN TO ENFORCE THIS
AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO AN AWARD OF