THE WORDS "HERETO," "HEREOF," "HEREIN" AND
"HEREUNDER" AND WORDS OF SIMILAR IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER
TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS
AGREEMENT. THE TERM "OR" IS NOT EXCLUSIVE. THE DEFINITIONS CONTAINED IN THIS
AGREEMENT ARE APPLICABLE TO THE SINGULAR AS WELL AS THE PLURAL FORMS OF SUCH
TERMS AND TO THE MASCULINE AS WELL AS TO THE FEMININE AND NEUTER GENDERS OF SUCH
TERMS.
ANY AGREEMENT OR INSTRUMENT DEFINED OR REFERRED TO HEREIN OR IN ANY
AGREEMENT OR INSTRUMENT THAT IS REFERRED TO HEREIN MEANS SUCH AGREEMENT OR
INSTRUMENT AS FROM TIME TO TIME AMENDED, MODIFIED OR SUPPLEMENTED.
REFERENCES
TO A PERSON ARE ALSO TO ITS PERMITTED SUCCESSORS AND ASSIGNS.
WHENEVER A
REFERENCE IS MADE IN THIS AGREEMENT TO AN ARTICLE OR SECTION, SUCH REFERENCE
SHALL BE TO AN ARTICLE OR SECTION OF THIS AGREEMENT UNLESS OTHERWISE INDICATED.
WHENEVER A REFERENCE IS MADE IN THIS AGREEMENT TO PARTIES, SUCH REFERENCE SHALL
BE TO THE PARTIES TO THIS AGREEMENT UNLESS OTHERWISE INDICATED.
THE DESCRIPTIVE
HEADINGS CONTAINED IN THIS AGREEMENT ARE INCLUDED FOR CONVENIENCE OF REFERENCE
ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF THIS
AGREEMENT.
EACH OF THE PARTIES HAS PARTICIPATED IN THE DRAFTING AND NEGOTIATION
OF THIS AGREEMENT.
IF AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION
ARISES, THIS AGREEMENT MUST BE CONSTRUED AS IF IT IS DRAFTED BY ALL THE PARTIES,
AND NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY
PARTY BY VIRTUE OF AUTHORSHIP OF ANY OF THE PROVISIONS OF THIS AGREEMENT.
SECTION 6.5.
COUNTERPARTS; EFFECT. THIS AGREEMENT MAY BE EXECUTED IN TWO OR
MORE COUNTERPARTS, AND BY THE DIFFERENT PARTIES IN SEPARATE COUNTERPARTS, ALL OF
WHICH TAKEN TOGETHER
6
SHALL CONSTITUTE ONE AND THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN ONE
OR MORE COUNTERPARTS HAVE BEEN EXECUTED BY EACH OF THE PARTIES AND DELIVERED TO
THE OTHER PARTIES.
COPIES OF EXECUTED COUNTERPARTS TRANSMITTED BY TELECOPY OR
ELECTRONIC TRANSMISSION SHALL BE CONSIDERED ORIGINAL EXECUTED COUNTERPARTS FOR
PURPOSES OF THIS SECTION 6.5, PROVIDED THAT RECEIPT OF SUCH COUNTERPARTS IS
CONFIRMED.
SECTION 6.6.
NO THIRD-PARTY BENEFICIARIES. THIS AGREEMENT SHALL BE BINDING
UPON AND INURE SOLELY TO THE BENEFIT OF EACH PARTY HERETO AND EACH PERMITTED
ASSIGNEE HEREOF, AND NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED
TO OR SHALL CONFER UPON ANY OTHER PERSON ANY RIGHT, BENEFIT OR REMEDY OF ANY
NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
SECTION 6.7.
GOVERNING LAW; WAVIER OF JURY TRIAL. THIS AGREEMENT, AND ALL
CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT) THAT MAY BE BASED UPON,
ARISE OUT OF OR RELATE TO THIS AGREEMENT, OR THE NEGOTIATION, EXECUTION OR
PERFORMANCE OF THIS AGREEMENT, SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED IN THAT STATE, WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
ALL ACTIONS AND