MADE AT THE RATE OF
EXCHANGE PREVAILING ON THE BUSINESS DAY PRECEDING (I) THE DATE OF ACTUAL PAYMENT
OF THE AMOUNT DUE, IN THE CASE OF PROCEEDINGS IN THE COURTS OF ANY JURISDICTION
THAT WILL GIVE EFFECT TO SUCH CONVERSION BEING MADE ON SUCH DAY, OR (II) THE DAY
ON WHICH THE JUDGMENT IS GIVEN, IN THE CASE OF PROCEEDINGS IN THE COURTS OF THE
PROVINCE OF ONTARIO OR OF ANY OTHER JURISDICTION (THE APPLICABLE DATE AS OF
WHICH SUCH CONVERSION IS MADE PURSUANT TO THIS SECTION BEING REFERRED TO AS THE
"JUDGMENT CONVERSION DATE").
FOR THIS PURPOSE, "RATE OF EXCHANGE" MEANS THE
RATE AT WHICH THE ROYAL BANK OF CANADA WOULD BE PREPARED ON THE RELEVANT DATE,
TO SELL THE CURRENCY OF THE AGREEMENT TO OBTAIN THE JUDGMENT CURRENCY.
IN THE
EVENT THAT THERE IS A CHANGE IN THE RATE OF EXCHANGE PREVAILING BETWEEN THE
JUDGMENT CONVERSION DATE AND THE DATE OF PAYMENT OF THE AMOUNT DUE, THE PARTY
AGAINST WHICH JUDGMENT IS RENDERED SHALL, ON THE DATE OF PAYMENT, PAY SUCH
ADDITIONAL AMOUNTS (IF ANY) AS MAY BE NECESSARY TO ENSURE THAT THE AMOUNT PAID
ON SUCH DATE IS THE AMOUNT IN THE JUDGMENT CURRENCY WHICH, WHEN CONVERTED AT THE
RATE OF EXCHANGE PREVAILING ON THE DATE OF PAYMENT, IS THE AMOUNT THEN DUE UNDER
THIS AGREEMENT IN THE CURRENCY OF THE AGREEMENT.
ANY ADDITIONAL AMOUNT DUE
UNDER THIS SECTION 11.4 WILL BE DUE AS A SEPARATE DEBT AND SHALL NOT BE AFFECTED
BY JUDGMENT BEING OBTAINED FOR ANY OTHER SUMS DUE OR IN RESPECT OF THIS
AGREEMENT.
11.6
BULK SALES.
IN CONSIDERATION OF THE INDEMNITY PROVIDED HEREIN BY
THE SELLER AND THE PRINCIPAL OWNERS TO THE BUYER, THE BUYER HEREBY WAIVES
COMPLIANCE BY THE SELLER WITH THE PROVISIONS OF ANY APPLICABLE BULK TRANSFER
LAWS, INCLUDING THE BULK SALES ACT (ONTARIO), OF ANY JURISDICTION IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
11.7
ENTIRE AGREEMENT; AMENDMENT.
THIS AGREEMENT, INCLUDING THE EXHIBITS
AND SCHEDULES HERETO, AND EACH ADDITIONAL AGREEMENT OR OTHER DOCUMENT TO BE
EXECUTED AND DELIVERED PURSUANT HERETO, CONSTITUTE ALL OF THE AGREEMENTS OF THE
PARTIES WITH RESPECT TO, AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
RELATING TO THE SUBJECT MATTER OF, THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREUNDER.
THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT BY
A WRITTEN INSTRUMENT SPECIFICALLY REFERRING TO THIS AGREEMENT SIGNED BY THE
PARTIES HERETO.
11.8
WAIVER.
NO WAIVER BY ONE PARTY OF THE OTHER PARTY'S OBLIGATIONS, OR
OF ANY BREACH OR DEFAULT HEREUNDER BY ANY OTHER PARTY, SHALL BE VALID OR
EFFECTIVE, UNLESS SUCH WAIVER IS SET FORTH IN WRITING AND IS SIGNED BY THE PARTY
GIVING SUCH WAIVER; AND NO SUCH WAIVER SHALL BE DEEMED A WAIVER OF ANY
SUBSEQUENT BREACH OR DEFAULT OF THE SAME OR SIMILAR NATURE OR ANY OTHER BREACH
OR DEFAULT BY SUCH OTHER PARTY.
11.9
INTERPRETATION; HEADINGS.
THIS AGREEMENT IS THE RESULT OF
ARMS'-LENGTH NEGOTIATIONS BETWEEN THE PARTIES HERETO AND NO PROVISION HEREOF,
BECAUSE OF ANY AMBIGUITY FOUND TO BE CONTAINED THEREIN OR