RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT WITHOUT CONSENT TO (A) AN AFFILIATE
OR (B) A SUCCESSOR TO ALL OR SUBSTANTIALLY ALL OF ITS BUSINESS OR ASSETS OF THE
ASSIGNING PARTY TO WHICH THIS AGREEMENT RELATES, WHETHER BY SALE, MERGER,
CONSOLIDATION, ACQUISITION, TRANSFER, OPERATION OF LAW OR OTHERWISE OR (C) IN
THE CASE OF EITHER PARTY, TO ONE OR MORE FINANCIAL INSTITUTIONS PROVIDING
FINANCING TO SUCH PARTY PURSUANT TO THE TERMS OF A SECURITY AGREEMENT RELATING
TO SUCH FINANCING.
10.10
CONSTRUCTION.
THE PARTIES ACKNOWLEDGE AND AGREE THAT: (A) EACH
PARTY AND ITS REPRESENTATIVES HAVE REVIEWED AND NEGOTIATED THE TERMS AND
PROVISIONS OF THIS AGREEMENT AND HAVE CONTRIBUTED TO ITS REVISION; AND (B) THE
TERMS AND PROVISIONS OF THIS AGREEMENT WILL BE CONSTRUED FAIRLY AS TO EACH PARTY
HERETO AND NOT IN FAVOR OF OR AGAINST EITHER PARTY REGARDLESS OF WHICH PARTY WAS
GENERALLY RESPONSIBLE FOR THE PREPARATION OR DRAFTING OF THIS AGREEMENT.
UNLESS
THE CONTEXT OF THIS AGREEMENT OTHERWISE REQUIRES: (I) WORDS OF ANY GENDER
INCLUDE EACH OTHER GENDER; (II) WORDS USING THE SINGULAR OR PLURAL NUMBER ALSO
INCLUDE THE PLURAL OR SINGULAR NUMBER, RESPECTIVELY; (III) THE TERMS "HEREOF,"
"HEREIN," "HEREBY," AND DERIVATIVE OR SIMILAR WORDS REFER TO THIS ENTIRE
AGREEMENT; (IV) THE TERMS "ARTICLE," "SECTION," OR "EXHIBIT" REFER TO THE
SPECIFIED
10
ARTICLE, SECTION, OR EXHIBIT OF THIS AGREEMENT; (V) "OR" IS DISJUNCTIVE BUT NOT
NECESSARILY EXCLUSIVE; AND (VI) THE TERM "INCLUDING" OR "INCLUDES" MEANS
"INCLUDING WITHOUT LIMITATION" OR "INCLUDES WITHOUT LIMITATION."
WHENEVER THIS
AGREEMENT REFERS TO A NUMBER OF DAYS, SUCH NUMBER SHALL REFER TO CALENDAR DAYS
UNLESS BUSINESS DAYS ARE SPECIFIED.
10.11
GOVERNING LAW.
THIS AGREEMENT WILL BE CONSTRUED UNDER AND IN
ACCORDANCE WITH, AND GOVERNED IN ALL RESPECTS BY, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
10.12
EQUITABLE RELIEF.
EACH PARTY ACKNOWLEDGES THAT A BREACH BY IT OF
THE PROVISIONS OF THIS AGREEMENT MAY NOT REASONABLY OR ADEQUATELY BE COMPENSATED
IN DAMAGES IN AN ACTION AT LAW AND THAT SUCH A BREACH MAY CAUSE THE OTHER PARTY
IRREPARABLE INJURY AND DAMAGE.
BY REASON THEREOF, EACH PARTY AGREES THAT THE
OTHER PARTY IS ENTITLED TO SEEK, IN ADDITION TO ANY OTHER REMEDIES IT MAY HAVE
UNDER THIS AGREEMENT OR OTHERWISE, PRELIMINARY AND PERMANENT INJUNCTIVE AND
OTHER EQUITABLE RELIEF TO PREVENT OR CURTAIL ANY BREACH OF THIS AGREEMENT BY THE
OTHER PARTY; PROVIDED, HOWEVER, THAT NO SPECIFICATION IN THIS AGREEMENT OF A
SPECIFIC LEGAL OR EQUITABLE REMEDY WILL BE CONSTRUED AS A WAIVER OR PROHIBITION
AGAINST THE PURSUING OF OTHER LEGAL OR EQUITABLE REMEDIES IN THE EVENT OF SUCH A
BREACH. EACH PARTY AGREES THAT THE EXISTENCE OF ANY CLAIM, DEMAND, OR CAUSE OF
ACTION OF IT AGAINST THE OTHER PARTY, WHETHER PREDICATED UPON THIS AGREEMENT, OR
OTHERWISE, WILL NOT CONSTITUTE A DEFENSE TO THE ENFORCEMENT BY THE OTHER PARTY,
OR ITS SUCCESSORS OR ASSIGNS, OF THE COVENANTS CONTAINED IN THIS AGREEMENT.
10.13
RELATIONSHIP BETWEEN PARTIES.
THE PARTIES HERETO ARE ACTING AND
PERFORMING AS INDEPENDENT CONTRACTORS, AND NOTHING IN