Common use of Construction and Severability Clause in Contracts

Construction and Severability. A. Unless otherwise specified, the term “Franchisee” as used in this Agreement shall include the entity identified in the preamble to this Agreement. B. Except as expressly provided to the contrary herein, each section, part, term and/or provision of this Agreement, including, but not limited to Section XXI.E., shall be considered severable; and if, for any reason any section, part, term or provision herein is determined to be invalid, unenforceable or contrary to, or in conflict with, any existing or future law or regulation by a court or agency having valid jurisdiction, such shall not impair the operation of, or have any other effect upon, such other sections, parts, terms and provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto; and said invalid or unenforceable sections, parts, terms or provisions shall be deemed to be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the invalid or unenforceable provision. C. Nothing in this Agreement is intended, nor shall be deemed, to confer any rights or remedies under or by reason of this Agreement upon any person or legal entity other than Franchisor or Franchisee and such of their respective successors and assigns subject to the prior approvals set forth in Section XV. hereof. D. Franchisee and Franchisor expressly agree to be bound by any promise or covenant imposing the maximum duty permitted by law that is subsumed within the terms of any provision hereof, as though it were separately articulated in and made part of this Agreement, that may result from striking any of the provisions hereof and portion or portions that a court may hold to be unreasonable and unenforceable in a final decision to which Franchisor or Franchisee, as applicable, is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order. E. All captions in the Agreement are intended solely for the convenience of the parties, and none shall be deemed to affect the meaning or construction of any provision hereof. F. All references herein to the masculine, neuter or singular shall be construed to include the masculine, feminine, neuter or plural, where applicable, and all acknowledgments, promises, covenants, agreements and obligations herein made or undertaken by Franchisee shall be deemed jointly and severally undertaken by all the parties hereto on behalf of Franchisee. G. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes and all of which shall constitute, collectively, one agreement. Delivery of an executed signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Agreement. H. When this Agreement provides that Franchisor may take or refrain from taking any action or exercise discretion, such as rights of approval, to modify the System, or to make determinations, Franchisor may do so from time to time. I. Except where Franchisor has reserved “sole discretion” or as otherwise indicated in this Agreement, Franchisor agrees to use “Reasonable Business Judgment” when discharging its obligations or exercising its rights or discretion under this Agreement, including with respect to any consents and approvals and the administration of its relationship with Franchisee. “Reasonable Business Judgment” means that Franchisor’s action or inaction has a business basis that is intended to benefit the System or the profitability of the System, including Franchisor, regardless of whether some individual hotels may be unfavorably affected; or to increase the value of the Proprietary Marks; or to increase or enhance overall hotel guest or franchisee or owner satisfaction; or to minimize possible brand inconsistencies or customer confusion. In the event that such obligation or exercise of discretion is unrelated to the System, standards, brand or other subjects described above, Reasonable Business Judgment shall mean that Franchisor has a business basis and has not acted in bad faith. Franchisee shall have the burden of establishing that Franchisor failed to exercise Reasonable Business Judgment, and neither the fact that Franchisor benefited economically from an action nor the existence of other “reasonable” alternatives will, by themselves, establish such failure. To the extent that any implied covenant, such as the implied covenant of good faith and fair dealing, is applied to this Agreement, Franchisor and Franchisee intend that Franchisor shall not have violated such implied covenant if Franchisor has exercised Reasonable Business Judgment.

Construction and Severability. A. Unless otherwise specified, the term “Franchisee” as used in this Agreement shall include the entity identified in the preamble to this Agreement. B. Except as expressly provided to the contrary hereinin this Agreement, each section, part, term and/or provision of this Agreement, includingincluding Section 16.1, but not limited to Section XXI.E., shall will be considered severable; and if, for any reason any section, part, term term, or provision herein is determined to be invalid, unenforceable or contrary to, or in conflict with, any existing or future law Applicable Law or regulation by a court or agency having valid jurisdiction, such shall will not impair the operation of, or have any other effect upon, such other sections, parts, terms terms, and provisions of this Agreement as may remain otherwise intelligible, and the latter shall will continue to be given full force and effect and bind Franchisor and Franchisee. To the parties hereto; and said extent possible, such invalid or unenforceable sections, parts, terms terms, or provisions shall will be deemed to be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the invalid or unenforceable provision. B. No right or remedy conferred upon or reserved to Franchisor or Franchisee by this Agreement is intended to be, nor will be deemed, exclusive of any other right or remedy herein or by law or equity provided or permitted, but each will be cumulative of every other right or remedy. C. Nothing in this Agreement is intended, nor shall or will be deemed, to create any third party beneficiary or confer any rights or remedies under or by reason of this Agreement upon any person or legal entity Person other than Franchisor (and its Affiliates) or Franchisee Franchisee, and such of their respective permitted successors and assigns subject to the prior approvals set forth in Section XV. hereofassigns. D. Franchisee and Franchisor expressly agree to be bound by any promise or covenant imposing the maximum duty permitted by law that is subsumed within the terms of any provision hereof, as though it were separately articulated in and made part of this Agreement, that may result from striking any of the provisions hereof and portion or portions that a court may hold to be unreasonable and unenforceable in a final decision to which Franchisor or Franchisee, as applicable, is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order. E. All captions in the Agreement are intended solely for the convenience of the parties, and none shall be deemed to affect the meaning or construction of any provision hereof. F. All references herein to the masculine, neuter or singular shall be construed to include the masculine, feminine, neuter or plural, where applicable, and all acknowledgments, promises, covenants, agreements and obligations herein made or undertaken by Franchisee shall be deemed jointly and severally undertaken by all the parties hereto on behalf of Franchisee. G. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes and all of which shall constitute, collectively, one agreement. Delivery of an executed signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Agreement. H. When this Agreement provides that Franchisor may take or refrain from taking any action or exercise discretion, such as rights of approvalapproval or consent, or to modify the SystemSystem or any part of it, or to make determinationsother determinations or modifications under this Agreement, Franchisor may do so from time to time. I. Except where Franchisor has reserved “sole discretion” or as E. Unless otherwise indicated in stated, references to Sections are to Sections of this Agreement. F. Unless otherwise stated, Franchisor agrees references to use “Reasonable Business Judgment” when discharging its obligations Exhibits, Attachments or exercising its rights or discretion under this AgreementAddenda are to Exhibits, including with respect to any consents Attachments and approvals and the administration of its relationship with Franchisee. “Reasonable Business Judgment” means that Franchisor’s action or inaction has a business basis that is intended to benefit the System or the profitability of the System, including Franchisor, regardless of whether some individual hotels may be unfavorably affected; or to increase the value of the Proprietary Marks; or to increase or enhance overall hotel guest or franchisee or owner satisfaction; or to minimize possible brand inconsistencies or customer confusion. In the event that such obligation or exercise of discretion is unrelated to the System, standards, brand or other subjects described above, Reasonable Business Judgment shall mean that Franchisor has a business basis and has not acted in bad faith. Franchisee shall have the burden of establishing that Franchisor failed to exercise Reasonable Business Judgment, and neither the fact that Franchisor benefited economically from an action nor the existence of other “reasonable” alternatives will, by themselves, establish such failure. To the extent that any implied covenant, such as the implied covenant of good faith and fair dealing, is applied Addenda to this Agreement, Franchisor and Franchisee intend that Franchisor shall all of such are incorporated by reference into this Agreement. G. Words importing the singular include the plural and vice versa as the context may imply. Words importing a gender include each gender as the context may imply. H. References to days, months, and years are to calendar days, calendar months, and calendar years, respectively. I. The words “include,” “included” and “including” will be terms of enlargement or example (meaning that, for instance, “including” will be read as “including but not have violated such implied covenant if Franchisor has exercised Reasonable Business Judgmentlimited to”) and will not imply any restriction or limitation unless the context clearly requires otherwise. J. Captions and section headings are used for convenience only. They are not part of this Agreement and will not be used in construing it.

Construction and Severability. A. Unless otherwise specified, the term “Franchisee” as used in this Agreement shall include the entity identified in the preamble to this Agreement. B. Except as expressly provided to the contrary hereinin this Agreement, each section, part, term and/or provision of this Agreement, includingincluding Section 16.1, but not limited to Section XXI.E., shall will be considered severable; and if, for any reason any section, part, term term, or provision herein is determined to be invalid, unenforceable or contrary to, or in conflict with, any existing or future law Applicable Law or regulation by an arbitral tribunal, a court or agency having valid jurisdiction, such shall will not impair the operation of, or have any other effect upon, such other sections, parts, terms terms, and provisions of this Agreement as may remain otherwise intelligible, and the latter shall will continue to be given full force and effect and bind Licensor and Licensee. To the parties hereto; and said extent possible, such invalid or unenforceable sections, parts, terms terms, or provisions shall will be deemed to be replaced with a provision that is valid and enforceable and most nearly reflects the original intent of the invalid or unenforceable provision. C. Nothing in B. No right or remedy conferred upon or reserved to Licensor or Licensee by this Agreement is intendedintended to be, nor shall will be deemed, to confer exclusive of any rights other right or remedies under remedy herein or by reason law or equity provided or permitted, but each will be cumulative of this Agreement upon any person every other right or legal entity other than Franchisor or Franchisee and such of their respective successors and assigns subject to the prior approvals set forth in Section XV. hereofremedy. D. Franchisee and Franchisor expressly agree to be bound by any promise or covenant imposing the maximum duty permitted by law that is subsumed within the terms of any provision hereof, as though it were separately articulated in and made part of this Agreement, that may result from striking any of the provisions hereof and portion or portions that a court may hold to be unreasonable and unenforceable in a final decision to which Franchisor or Franchisee, as applicable, is a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order. E. All captions in the Agreement are intended solely for the convenience of the parties, and none shall be deemed to affect the meaning or construction of any provision hereof. F. All references herein to the masculine, neuter or singular shall be construed to include the masculine, feminine, neuter or plural, where applicable, and all acknowledgments, promises, covenants, agreements and obligations herein made or undertaken by Franchisee shall be deemed jointly and severally undertaken by all the parties hereto on behalf of Franchisee. G. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes and all of which shall constitute, collectively, one agreement. Delivery of an executed signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Agreement. H. C. When this Agreement provides that Franchisor either party may take or refrain from taking any action or exercise discretion, such as rights of approvalapproval or consent, or to modify any part of the Brand Standards or System, or to make determinationsother determinations or modifications under this Agreement, Franchisor such party may do so from time to time. I. Except where Franchisor has reserved “sole discretion” or as D. Unless otherwise indicated in stated, references to Sections are to Sections of this Agreement. E. Unless otherwise stated, Franchisor agrees references to use “Reasonable Business Judgment” when discharging its obligations Exhibits, Attachments or exercising its rights or discretion under this AgreementAddenda are to Exhibits, including with respect to any consents Attachments and approvals and the administration of its relationship with Franchisee. “Reasonable Business Judgment” means that Franchisor’s action or inaction has a business basis that is intended to benefit the System or the profitability of the System, including Franchisor, regardless of whether some individual hotels may be unfavorably affected; or to increase the value of the Proprietary Marks; or to increase or enhance overall hotel guest or franchisee or owner satisfaction; or to minimize possible brand inconsistencies or customer confusion. In the event that such obligation or exercise of discretion is unrelated to the System, standards, brand or other subjects described above, Reasonable Business Judgment shall mean that Franchisor has a business basis and has not acted in bad faith. Franchisee shall have the burden of establishing that Franchisor failed to exercise Reasonable Business Judgment, and neither the fact that Franchisor benefited economically from an action nor the existence of other “reasonable” alternatives will, by themselves, establish such failure. To the extent that any implied covenant, such as the implied covenant of good faith and fair dealing, is applied Addenda to this Agreement, Franchisor and Franchisee intend that Franchisor shall all of such are incorporated by reference into this Agreement. F. Words importing the singular include the plural and vice versa as the context may imply. Words importing a gender include each gender as the context may imply. G. Unless otherwise stated, references to days, months, and years are to calendar days, calendar months, and calendar years, respectively. H. The words “include,” “included” and “including” will be terms of enlargement or example (meaning that, for instance, “including” will be read as “including but not have violated such implied covenant if Franchisor has exercised Reasonable Business Judgmentlimited to”) and will not imply any restriction or limitation unless the context clearly requires otherwise. I. Captions and section headings are used for convenience only. They are not part of this Agreement and will not be used in construing it. J. The Recitals are incorporated in and made part of this Agreement.

Construction and Severability. A. Unless otherwise specified1. This Agreement shall be deemed to have been jointly drafted, the term “Franchisee” and no provision herein shall be interpreted or construed for or against any Party because such Party drafted or requested such provision or this Agreement as used a whole. 2. If any provision in this Agreement is declared invalid or unenforceable by a court having competent jurisdiction, it is mutually agreed that this Agreement shall include endure except for the entity identified part declared invalid or unenforceable by order of such court, unless the elimination of the invalid provision shall materially affect the intent of the Agreement. The Parties agree that payment of the Settlement Amount as provided herein is a material term of this Agreement. The Parties to this Agreement shall consult and use their best efforts to agree upon a valid and enforceable provision that shall be a reasonable substitute for such invalid or unenforceable provision in light of the preamble to intent of this Agreement. B. 3. Except as expressly provided with respect to the contrary hereinStipulation and Protective Order referenced in Section II.5, each section, part, term and/or provision of this Agreement, including, but not limited to Section XXI.E., shall be considered severable; and if, for any reason any section, part, term or provision herein is determined to be invalid, unenforceable or contrary to, or in conflict with, any existing or future law or regulation by a court or agency having valid jurisdiction, such shall not impair Agreement contains all the operation of, or have any other effect upon, such other sections, parts, terms and provisions conditions agreed upon by the Parties hereto, and no prior oral or written communications or oral or written agreement entered into prior to the execution of this Agreement as may remain otherwise intelligible, and regarding the latter shall continue to be given full force and effect and bind subject matter of the parties hereto; and said invalid or unenforceable sections, parts, terms or provisions instant proceeding shall be deemed to be replaced with a provision that is valid exist, to bind the Parties hereto, or to vary the terms and enforceable and most nearly reflects the original intent of the invalid or unenforceable provisionconditions contained herein. C. Nothing in 4. The Parties to this Agreement is intended, nor shall be deemed, expressly represent and warrant that they have full legal capacity to confer any rights or remedies under or by reason of this Agreement upon any person or legal entity other than Franchisor or Franchisee and such of their respective successors and assigns subject to the prior approvals set forth in Section XV. hereof. D. Franchisee and Franchisor expressly agree to be bound by any promise or covenant imposing the maximum duty permitted by law that is subsumed within the terms of any provision hereof, as though it were separately articulated in and made part of enter into this Agreement, that may result from striking any they have carefully read and fully understand this Agreement, that they have had the opportunity to review this Agreement with their attorneys, and that they have executed this Agreement voluntarily, without duress, coercion, or undue influence. 5. The Parties agree this Final Settlement Agreement shall be subject to and interpreted in accordance with the laws of the provisions hereof and portion or portions State of New York, exclusive of its choice of law rules that a court may hold to be unreasonable and unenforceable in a final decision to which Franchisor or Franchisee, as applicable, is a party, or from reducing would require the scope application of any promise or covenant to laws other than those of the extent required to comply with such a court orderState of New York. E. All captions in the Agreement are intended solely for the convenience of the parties, and none shall be deemed 6. The failure or delay by a Party to affect the meaning or construction require performance of any provision hereofhereof shall not affect that Party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent default or a waiver of the provision itself or any other provision. F. All references herein to the masculine, neuter or singular shall be construed to include the masculine, feminine, neuter or plural, where applicable, and all acknowledgments, promises, covenants, agreements and obligations herein made or undertaken by Franchisee shall be deemed jointly and severally undertaken by all the parties hereto on behalf of Franchisee. G. 7. This Agreement may be executed in a any number of identical counterparts, counterparts and each of which such counterpart shall be deemed to be an original for all original. For purposes and all of which shall constitute, collectively, one agreement. Delivery of an executed signature page to this Agreement by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Agreement. H. When this Agreement provides that Franchisor may take or refrain from taking any action or exercise discretion, such as rights of approval, to modify the System, or to make determinations, Franchisor may do so from time to time. I. Except where Franchisor has reserved “sole discretion” or as otherwise indicated in executing this Agreement, Franchisor agrees to use “Reasonable Business Judgment” when discharging its obligations a document signed and transmitted by facsimile or exercising its rights or discretion under this Agreement, including with respect to any consents email shall be treated as an original document and approvals and the administration of its relationship with Franchisee. “Reasonable Business Judgment” means that Franchisor’s action or inaction has a business basis that is intended to benefit the System or the profitability of the System, including Franchisor, regardless of whether some individual hotels may be unfavorably affected; or to increase the value of the Proprietary Marks; or to increase or enhance overall hotel guest or franchisee or owner satisfaction; or to minimize possible brand inconsistencies or customer confusion. In the event that such obligation or exercise of discretion is unrelated to the System, standards, brand or other subjects described above, Reasonable Business Judgment shall mean that Franchisor has a business basis and has not acted in bad faith. Franchisee shall have the burden same binding legal effect as an original signature on an original document. Case 1:18-cv-03196-VSB-RWL Document 259 Filed 12/17/21 Page 24 of establishing that Franchisor failed to exercise Reasonable Business Judgment58 AGREED TO BY THE PARTIES: Dated: , 2021 FAIR HOUSING JUSTICE CENTER By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Executive Director Dated.hd-"I , 2021 ELM YORK LLC, ▇▇▇▇▇▇▇ ▇▇▇▇ ASSISTED LIVING COMMUNITY, LLC, MADISON YORK ▇▇▇▇ PARK LLC By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ It is so ORDERED this day of _ . 2021. ▇▇▇. ▇▇▇▇▇▇ ▇. Broderick United States District Judge W:LW Case 1:18-cv-03196-VSB-RWL Document 259 Filed 12/17/21 Page 25 of 58 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK FAIR HOUSING JUSTICE CENTER, INC., ▇▇▇▇ ▇▇▇ and neither the fact that Franchisor benefited economically from an action nor the existence of other “reasonable” alternatives will, by themselves, establish such failure. To the extent that any implied covenant, such as the implied covenant of good faith and fair dealing, is applied to this Agreement, Franchisor and Franchisee intend that Franchisor shall not have violated such implied covenant if Franchisor has exercised Reasonable Business Judgment.▇▇▇▇ ▇▇▇,