TO PERFORM ITS OBLIGATIONS AND DUTIES HEREUNDER; PROVIDED THAT THE
PARTIES SHALL REMAIN LIABLE HEREUNDER FOR THE PROMPT PAYMENT AND PERFORMANCE OF
ALL THEIR RESPECTIVE OBLIGATIONS HEREUNDER.
SECTION 13.11
FORCE MAJEURE.
NEITHER PARTY SHALL BE HELD LIABLE TO THE OTHER
PARTY NOR BE DEEMED TO HAVE DEFAULTED UNDER OR BREACHED THIS AGREEMENT FOR
FAILURE OR DELAY IN PERFORMING ANY OBLIGATION UNDER THIS AGREEMENT TO THE EXTENT
THAT SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM CAUSES BEYOND THE
REASONABLE CONTROL OF THE AFFECTED PARTY, POTENTIALLY INCLUDING EMBARGOES, WAR,
ACTS OF WAR (WHETHER WAR BE DECLARED OR NOT), INSURRECTIONS, RIOTS, CIVIL
COMMOTIONS, STRIKES, LOCKOUTS OR OTHER LABOR DISTURBANCES, FIRE, FLOODS, LOCUSTS
OR OTHER ACTS OF GOD, OR ACTS, OMISSIONS OR DELAYS IN ACTING BY ANY GOVERNMENTAL
AUTHORITY OR THE OTHER PARTY.
THE AFFECTED PARTY SHALL NOTIFY THE OTHER PARTY
OF SUCH FORCE MAJEURE CIRCUMSTANCES AS SOON AS REASONABLY PRACTICAL, AND SHALL
PROMPTLY UNDERTAKE ALL REASONABLE EFFORTS NECESSARY TO CURE SUCH FORCE MAJEURE
CIRCUMSTANCES.
SECTION 13.12
CONSTRUCTION.
EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN ADVISED
BY COUNSEL DURING THE COURSE OF NEGOTIATION OF THIS AGREEMENT, AND, THEREFORE,
THAT THIS AGREEMENT SHALL BE INTERPRETED WITHOUT REGARD TO ANY PRESUMPTION OR
RULE REQUIRING CONSTRUCTION AGAINST THE PARTY CAUSING THIS AGREEMENT TO BE
DRAFTED.
WHENEVER THE CONTEXT MAY REQUIRE, ANY PRONOUN SHALL INCLUDE THE
CORRESPONDING MASCULINE, FEMININE AND NEUTER FORMS.
THE WORDS "INCLUDE,"
"INCLUDES" AND "INCLUDING" SHALL BE DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT
LIMITATION."
THE WORD "WILL" SHALL BE CONSTRUED TO HAVE THE SAME MEANING AND
EFFECT AS THE WORD "SHALL."
UNLESS THE CONTEXT REQUIRES OTHERWISE, (A) ANY
DEFINITION OF OR REFERENCE TO ANY AGREEMENT, INSTRUMENT OR OTHER DOCUMENT HEREIN
SHALL BE CONSTRUED AS REFERRING TO SUCH AGREEMENT, INSTRUMENT OR OTHER DOCUMENT
AS FROM TIME TO TIME AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED (SUBJECT TO ANY
RESTRICTIONS ON SUCH AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS SET FORTH HEREIN
OR THEREIN), (B) ANY REFERENCE TO ANY LAWS HEREIN SHALL BE CONSTRUED AS
REFERRING TO SUCH LAWS AS THEY FROM TIME TO TIME MAY BE ENACTED, REPEALED OR
AMENDED, (C) ANY REFERENCE HEREIN TO
*Confidential Treatment Requested.
Omitted portions filed separately with the
Commission.
88
ANY PERSON SHALL BE CONSTRUED TO INCLUDE THE PERSON'S SUCCESSORS AND ASSIGNS,
(D) THE WORDS "HEREIN," "HEREOF' AND "HEREUNDER," AND WORDS OF SIMILAR IMPORT,
SHALL BE CONSTRUED TO REFER TO THIS AGREEMENT IN ITS ENTIRETY AND NOT TO ANY
PARTICULAR PROVISION HEREOF, (E) ANY REFERENCE HEREIN TO THE WORDS "MUTUALLY
AGREE" OR "MUTUAL WRITTEN AGREEMENT" SHALL NOT IMPOSE ANY OBLIGATION ON EITHER
PARTY TO AGREE TO ANY TERMS RELATING THERETO OR TO ENGAGE IN DISCUSSIONS
RELATING TO SUCH TERMS EXCEPT AS SUCH PARTY MAY DETERMINE IN SUCH PARTY'S SOLE
DISCRETION; (F) ALL REFERENCES HEREIN TO ARTICLES, SECTIONS,
EXHIBITS AND
SCHEDULES SHALL BE CONSTRUED TO REFER TO ARTICLES, SECTIONS, EXHIBITS AND
SCHEDULES OF THIS AGREEMENT; AND (G) THE WORD "OR" IS USED IN THE INCLUSIVE
SENSE (AND/OR).
SECTION 13.13
EXECUTION IN COUNTERPARTS; FACSIMILE SIGNATURES.
THIS AGREEMENT
MAY BE EXECUTED