Miscellaneous Clause Example from Business Contracts

Miscellaneous. 4.1. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE. 4 4.2. Duplicate Originals; Electronic Signature. Two or more duplicate originals of this Amendment may be signed by the parties, each of which shall be an origin...al but all of which together shall constitute one and the same instrument. This Amendment may be executed in one or more counterparts and shall be effective when at least one counterpart shall have been executed by each party hereto, and each set of counterparts that, collectively, show execution by each party hereto shall constitute one duplicate original. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment. 4.3. Waiver and Amendments. Neither this Amendment nor any term hereof may be changed, waived, discharged or terminated orally, or by any action or inaction, but only by an instrument in writing signed by each of the parties signatory hereto. 4.4. Costs and Expenses. Whether or not the amendments contemplated by this Amendment become effective, the Company confirms its obligation under Section 15.1 of the Note Agreement and agrees that, on the Second Amendment Effective Date (or if an invoice is delivered subsequent to the Second Amendment Effective Date or if such amendments do not become effective, promptly after receiving any statement or invoice therefor), it will pay all costs and expenses of the Noteholders relating to this Amendment, including, but not limited to, the statement for reasonable fees and disbursements of the Noteholders' special counsel presented to the Company at least one Business Day prior to the Second Amendment Effective Date. The Company will also promptly pay, upon receipt thereof, each additional statement for reasonable fees and disbursements of the Noteholders' special counsel rendered after the Second Amendment Effective Date in connection with this Amendment. 4.5. Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. The provisions hereof are intended to be for the benefit of the Noteholders and shall be enforceable by any successor or assign of any such Noteholder, whether or not an express assignment of rights hereunder shall have been made by such Noteholder or its successors and assigns. 4.6. Survival. All warranties, representations, certifications and covenants made by the Company in this Amendment shall be considered to have been relied upon by the Noteholders and shall survive the execution and delivery of this Amendment, regardless of any investigation made by or on behalf of the Noteholders. 5 4.7. Part of Existing Note Agreement; Future References, etc. This Amendment shall be construed in connection with and as a part of the Note Agreement and, except as expressly amended by this Amendment, all terms, conditions and covenants contained in the Existing Note Agreement are hereby ratified and shall be and remain in full force and effect. Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Amendment may refer to the Existing Note Agreement without making specific reference to this Amendment, but nevertheless all such references shall include this Amendment, unless the context otherwise requires. 4.8. Affirmation of Obligations under Existing Note Agreement and Notes; No Novation. Anything contained herein to the contrary notwithstanding, this Amendment is not intended to and shall not serve to effect a novation of the obligations under the Existing Note Agreement. Instead, it is the express intention of the parties hereto to reaffirm the indebtedness created under the Existing Note Agreement, as amended by this Amendment, and the Notes. The Company hereby acknowledges and affirms all of its respective obligations under the terms of the Existing Note Agreement, as amended by this Amendment, and the Notes. The execution, delivery and effectiveness of this Amendment shall not be deemed, except as expressly provided herein, (a) to operate as a waiver of any right, power or remedy of any of the Noteholders under the Existing Note Agreement or the Notes, nor constitute a waiver or amendment of any provision thereunder, or (b) to prejudice any rights which any Noteholder now has or may have in the future under or in connection with the Note Agreement or the Notes or under applicable law. [Remainder of page intentionally left blank. Next page is signature page.] View More