AFFILIATES, FROM TIME TO TIME, PURSUANT TO THE FRANCHISOR CONSENT.
8.5
EXCLUSIVITY OF REMEDIES.
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE
THAT THEIR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY AND ALL CLAIMS RELATING
TO THE SUBJECT MATTER OF THIS AGREEMENT (OTHER THAN A CLAIM FOR FRAUD OR FOR
SPECIFIC PERFORMANCE OF THE TERMS OF THIS AGREEMENT) SHALL BE PURSUANT TO, AND
LIMITED BY, THE INDEMNIFICATION PROVISIONS SET FORTH IN THIS SECTION 8.
SECTION 9
MISCELLANEOUS
9.1
NOTICES.
ALL NOTICES WITH RESPECT TO THIS AGREEMENT WILL BE IN
WRITING AND SENT BY HAND DELIVERY, OVERNIGHT DELIVERY VIA A NATIONAL COURIER
SERVICE, CERTIFIED MAIL OR FACSIMILE TO THE PARTIES AT THEIR ADDRESSES OR
FACSIMILE NUMBERS AS FOLLOWS:
31
If to Seller or Parent:
New Horizons Computer Learning Center of Chicago, Inc.
Attention:
Office of General Counsel
1900 S. State College Blvd., Suite 650
Anaheim, CA
92806
Tel:
(714) 940-8000
Fax:
(714) 938-6007
If to Buyer or M&J:
NH Chicago, LLC
14115 Farmington Road
Livonia, MI
48154
Tel:
(734) 525-1501
Fax:
(734) 525-1401
The date of giving of any such notice shall be (i) the date of delivery if hand
delivered, (ii) the date of receipt for certified mail, (iii) the day after
delivery to the overnight courier service if sent thereby, and (iv) the date of
telephone facsimile transmission on production of a transmission report by the
machine from which the facsimile was sent that indicates that the facsimile was
sent in its entirety to the facsimile number of the recipient.
9.2
ENTIRE AGREEMENT; ASSIGNMENT.
THIS AGREEMENT, TOGETHER WITH THE
EXHIBITS AND SCHEDULES PROVIDED FOR HEREIN AND ATTACHED HERETO, REPRESENTS THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR
OR CONTEMPORANEOUS AGREEMENTS, PROMISES OR UNDERSTANDINGS, VERBAL OR WRITTEN,
INCLUDING, WITHOUT LIMITATION, THAT CERTAIN NON-BINDING LETTER OF INTENT DATED
AS OF JANUARY 24, 2007 BETWEEN PARENT AND AN AFFILIATE OF BUYER.
THIS AGREEMENT
IS AND SHALL BE BINDING ON EACH PARTY AND ITS OR HIS RESPECTIVE SUCCESSORS,
HEIRS AND PERMITTED ASSIGNS.
EXCEPT FOR ANY ASSIGNMENT BY BUYER TO ANY
AFFILIATES OF BUYER OR TO ANY PERSON THAT ACQUIRES THE BUSINESS OF BUYER
(WHETHER THROUGH MERGER, SHARE EXCHANGE, STOCK PURCHASE, ACQUISITION OF
SUBSTANTIALLY ALL OF THE ASSETS OR OTHER SIMILAR TRANSACTION), THIS AGREEMENT
MAY NOT BE ASSIGNED WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY, AND MAY ONLY
BE AMENDED BY A WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF ALL
PARTIES.
9.3
WAIVER.
THE FAILURE OF EITHER PARTY TO ENFORCE ANY RIGHT, REMEDY
OR CONDITION OF THIS AGREEMENT SHALL NOT BE DEEMED A WAIVER THEREOF NOR SHALL IT
VOID OR OTHERWISE AFFECT ITS RIGHT TO ENFORCE THE SAME RIGHT, REMEDY OR
CONDITION AT ANY SUBSEQUENT TIME.
9.4
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. ALL OF THE
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS SET FORTH IN THIS
AGREEMENT AND IN ANY CERTIFICATE OR DOCUMENT DELIVERED PURSUANT TO THIS
AGREEMENT SHALL SURVIVE THE CLOSING AND CONTINUE UNTIL THE EXPIRATION OF THE
APPLICABLE STATUTE OF LIMITATIONS AND SHALL BE DEEMED TO HAVE BEEN RELIED