AS AGAINST THE
PARTY WHOSE SIGNATURE APPEARS THEREON, BUT ALL OF WHICH TAKEN TOGETHER WILL
CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
SECTION 16.6
WAIVER.
THE FAILURE OF EITHER PARTY TO ENFORCE OR TO
EXERCISE, AT ANY TIME OR FOR ANY PERIOD OF TIME, ANY TERM OF OR ANY RIGHT
ARISING PURSUANT TO THIS AGREEMENT DOES NOT
45
CONSTITUTE, AND WILL NOT BE CONSTRUED AS, A WAIVER OF SUCH TERM OR RIGHT, AND
WILL IN NO WAY AFFECT THAT PARTY'S RIGHT LATER TO ENFORCE OR EXERCISE SUCH TERM
OR RIGHT.
SECTION 16.7
FORCE MAJEURE.
(A)
IN THE EVENT OF ANY FAILURE OR DELAY IN THE PERFORMANCE BY A PARTY
OF ANY PROVISION OF THIS AGREEMENT DUE TO ACTS BEYOND THE REASONABLE CONTROL OF
SUCH PARTY (SUCH AS, FOR EXAMPLE, FIRE, EXPLOSION, STRIKE OR OTHER DIFFICULTY
WITH WORKMEN, SHORTAGE OF TRANSPORTATION EQUIPMENT, ACCIDENT, ACT OF GOD,
DECLARED OR UNDECLARED WARS, ACTS OF TERRORISM, OR COMPLIANCE WITH OR OTHER
ACTION TAKEN TO CARRY OUT THE INTENT OR PURPOSE OF ANY LAW OR REGULATION) (A
"FORCE MAJEURE EVENT"), THEN SUCH PARTY SHALL HAVE SUCH ADDITIONAL TIME TO
PERFORM AS SHALL BE REASONABLY NECESSARY UNDER THE CIRCUMSTANCES.
IN THE EVENT
OF SUCH FAILURE OR DELAY, THE AFFECTED PARTY WILL USE ITS DILIGENT EFFORTS,
CONSISTENT WITH SOUND BUSINESS JUDGMENT AND TO THE EXTENT PERMITTED BY LAW, TO
CORRECT SUCH FAILURE OR DELAY AS EXPEDITIOUSLY AS POSSIBLE.
IN THE EVENT THAT A
PARTY IS UNABLE TO PERFORM BY A REASON DESCRIBED IN THIS SECTION 16.7, ITS
OBLIGATION TO PERFORM UNDER THE AFFECTED PROVISION OF THIS AGREEMENT SHALL BE
SUSPENDED DURING SUCH TIME OF NONPERFORMANCE.
(B)
NEITHER PARTY SHALL BE LIABLE HEREUNDER TO THE OTHER PARTY NOR
SHALL BE IN BREACH FOR FAILURE TO PERFORM ITS OBLIGATIONS CAUSED BY A FORCE
MAJEURE EVENT.
IN THE CASE OF ANY SUCH EVENT, THE AFFECTED PARTY SHALL
PROMPTLY, BUT IN NO EVENT LATER THAN 10 DAYS OF ITS OCCURRENCE, NOTIFY THE OTHER
PARTY STATING THE NATURE OF THE CONDITION, ITS ANTICIPATED DURATION AND ANY
ACTION BEING TAKEN TO AVOID OR MINIMIZE ITS EFFECT.
FURTHERMORE, THE AFFECTED
PARTY SHALL KEEP THE OTHER PARTY INFORMED OF THE EFFORTS TO RESUME PERFORMANCE.
AFTER SIXTY (60) DAYS OF SUCH INABILITY TO PERFORM, THE PARTIES AGREE TO MEET
AND IN GOOD FAITH DISCUSS HOW TO PROCEED.
IN THE EVENT THAT THE AFFECTED PARTY
IS PREVENTED FROM PERFORMING ITS OBLIGATIONS PURSUANT TO THIS SECTION 16.7 FOR A
PERIOD OF SIX (6) MONTHS, THE OTHER PARTY SHALL HAVE THE RIGHT TO TERMINATE THIS
AGREEMENT PURSUANT TO THE PROVISIONS OF SECTIONS 8.4(B).
SECTION 16.8
SUCCESSORS AND ASSIGNS.
SUBJECT TO SECTION 16.9, THIS
AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF THE PARTIES
HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS PERMITTED UNDER THIS
AGREEMENT.
SECTION 16.9
ASSIGNMENT.
THIS AGREEMENT AND THE RIGHTS GRANTED HEREIN
SHALL NOT BE ASSIGNABLE BY EITHER PARTY HERETO WITHOUT THE PRIOR WRITTEN CONSENT
OF THE OTHER PARTY.
ANY ATTEMPTED ASSIGNMENT WITHOUT CONSENT SHALL BE VOID.
NOTWITHSTANDING THE FOREGOING, A PARTY