TABLE OF CONTENTS, TITLE OR ARTICLE OR
SECTION HEADING IS FOR CONVENIENCE OF REFERENCE ONLY AND WILL NOT AFFECT THE
MEANING OR CONSTRUCTION OF ANY OF THE PROVISIONS OF THIS RESTATED AGREEMENT.
12.12
CURRENCY.
UNLESS OTHERWISE SPECIFIED IN THIS RESTATED
AGREEMENT, ALL REFERENCES TO CURRENCY, MONETARY VALUES AND DOLLARS SET FORTH
HEREIN WILL MEAN UNITED STATES DOLLARS AND ALL PAYMENTS HEREUNDER WILL BE MADE
IN UNITED STATES DOLLARS.
12.13
FURTHER ASSURANCES.
BESA AND XTENT, FROM TIME TO TIME
AFTER THE EXECUTION OF THIS RESTATED AGREEMENT AT THE REQUEST OF THE OTHER PARTY
AND WITHOUT FURTHER CONSIDERATION, WILL EXECUTE AND DELIVER FURTHER INSTRUMENTS
OF TRANSFER AND ASSIGNMENT (IN ADDITION TO THOSE SPECIFICALLY CONTEMPLATED IN
THIS RESTATED AGREEMENT) AND TAKE SUCH OTHER ACTION AS SUCH OTHER PARTY MAY
REASONABLY REQUEST TO MORE EFFECTIVELY FULFILL THE INTENTS AND PURPOSES OF THIS
RESTATED AGREEMENT.
12.14
NO THIRD PARTY BENEFICIARIES.
NOTHING IN THIS RESTATED
AGREEMENT EXPRESSED OR IMPLIED IS INTENDED TO CONFER ON ANY PERSON OTHER THAN
THE PARTIES AND THEIR RESPECTIVE AFFILIATES, REPRESENTATIVES, SUCCESSORS AND
PERMITTED ASSIGNS, ANY RIGHTS, REMEDIES, OBLIGATIONS OR LIABILITIES UNDER OR BY
REASON OF THIS RESTATED AGREEMENT.
12.15
WAIVER.
NO DELAY OR OMISSION ON THE PART OF EITHER
PARTY IN REQUIRING PERFORMANCE BY THE OTHER PARTY HEREUNDER, OR IN EXERCISING
ANY RIGHT HEREUNDER, SHALL OPERATE AS A WAIVER OF ANY PROVISION HEREOF OR OF ANY
RIGHT OR RIGHTS HEREUNDER, AND THE WAIVER OR OMISSION OR DELAY IN REQUIRING
PERFORMANCE OR EXERCISING ANY RIGHT HEREUNDER ON ONE OCCASION SHALL NOT BE
CONSTRUED AS A BAR TO OR WAIVER OF SUCH PERFORMANCE OR RIGHT, OR OF ANY RIGHT OR
REMEDY UNDER THIS RESTATED AGREEMENT, ON ANY FUTURE OCCASION.
12.16
FORCE MAJEURE.
NEITHER PARTY SHALL BE LIABLE FOR DELAY
OR FAILURE IN THE PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THIS RESTATED
AGREEMENT IF AND TO THE EXTENT SUCH DELAY OR FAILURE IS DUE TO CIRCUMSTANCES
BEYOND THE REASONABLE CONTROL OF SUCH PARTY, INCLUDING, BUT NOT LIMITED TO,
FIRES, FLOODS, EXPLOSIONS, ACCIDENTS, ACTS OF GOD, WAR, RIOT, STRIKE, LOCKOUT OR
OTHER CONCERTED ACTS OF WORKERS, ACTS OF GOVERNMENT; PROVIDED, HOWEVER, THAT THE
PARTY CLAIMING THAT A FORCE MAJEURE HAS AFFECTED ITS PERFORMANCE SHALL GIVE
NOTICE TO THE OTHER PARTY WITHIN TEN (10) DAYS OF BECOMING AWARE OF THE
OCCURRENCE OF FORCE MAJEURE, GIVING FULL PARTICULARS OF THE CAUSE OR EVENT AND
THE DATE OF FIRST OCCURRENCE THEREOF.
THE PARTY CLAIMING FORCE MAJEURE SHALL
USE ITS BEST EFFORTS TO ELIMINATE OR PREVENT THE CAUSE SO AS TO CONTINUE
PERFORMING ITS OBLIGATIONS UNDER THIS RESTATED AGREEMENT AS SOON AS POSSIBLE.
12.17
INDEPENDENT CONTRACTORS.
BESA AND XTENT ARE
INDEPENDENT CONTRACTORS AND NOTHING CONTAINED IN THIS RESTATED AGREEMENT SHALL
BE CONSTRUED TO CONSTITUTE EITHER PARTY AS A PARTNER, JOINT VENTURER, CO-OWNER,
OR EMPLOYEE OF THE OTHER PARTY, AND NEITHER PARTY SHALL HOLD ITSELF OUT AS
SUCH.
NEITHER PARTY HAS ANY RIGHT OR AUTHORITY TO INCUR, ASSUME OR CREATE, IN
WRITING OR OTHERWISE, ANY WARRANTY, LIABILITY OR
41
OTHER OBLIGATION OF ANY KIND, EXPRESS OR IMPLIED, IN