IN ANY MANNER ADVERSE TO ANY PARTY.
UPON
SUCH DETERMINATION, THE PARTIES SHALL NEGOTIATE IN GOOD FAITH IN AN EFFORT TO
AGREE UPON SUCH A SUITABLE AND EQUITABLE PROVISION TO AFFECT THE ORIGINAL INTENT
OF THE PARTIES.
12.6
EXPENSES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN
ANY ANCILLARY AGREEMENT, WHETHER OR NOT THE SEPARATION OR THE DISTRIBUTION IS
CONSUMMATED, ALL THIRD PARTY FEES, COSTS AND EXPENSES PAID OR INCURRED IN
CONNECTION WITH THE SEPARATION AND DISTRIBUTION SHALL BE PAID BY PDL BUT ONLY TO
THE EXTENT SUCH FEES ARISE OR WERE PAID OR INCURRED PRIOR TO THE EFFECTIVE TIME.
12.7
SURVIVAL OF COVENANTS.
EXCEPT AS EXPRESSLY SET FORTH IN ANY
ANCILLARY AGREEMENT, ALL COVENANTS, REPRESENTATIONS AND WARRANTIES CONTAINED IN
THIS AGREEMENT AND EACH ANCILLARY AGREEMENT, AND LIABILITY FOR THE BREACH OF ANY
OBLIGATIONS CONTAINED HEREIN, SHALL SURVIVE THE EFFECTIVE TIME AND REMAIN IN
FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR APPLICABLE TERMS.
12.8
WAIVERS OF DEFAULT.
THE FAILURE OF EITHER PARTY TO REQUIRE STRICT
PERFORMANCE BY THE OTHER PARTY OF ANY PROVISION IN THIS AGREEMENT OR ANY
ANCILLARY AGREEMENT WILL NOT WAIVE OR DIMINISH SUCH PARTY'S RIGHT TO DEMAND
STRICT PERFORMANCE THEREAFTER OF THAT OR ANY OTHER PROVISION HEREOF.
12.9
SPECIFIC PERFORMANCE.
THE PARTIES AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT THE PROVISIONS OF THIS AGREEMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS.
ACCORDINGLY, IT IS HEREBY
AGREED THAT THE PARTIES SHALL BE ENTITLED TO (A) AN INJUNCTION OR INJUNCTIONS TO
ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF IN ANY ARBITRATION IN
ACCORDANCE WITH ARTICLE IX, (B) PROVISIONAL OR TEMPORARY INJUNCTIVE RELIEF IN
ACCORDANCE THEREWITH IN THE DISTRICT OF DELAWARE, AND (III) ENFORCEMENT OF ANY
SUCH AWARD OF AN ARBITRAL TRIBUNAL IN ANY COURT OF THE UNITED STATES, OR ANY
OTHER ANY COURT OR TRIBUNAL SITTING IN ANY STATE OF THE UNITED STATES OR IN ANY
FOREIGN COUNTRY THAT HAS JURISDICTION, THIS BEING IN ADDITION TO ANY OTHER
REMEDY OR RELIEF TO WHICH THEY MAY BE ENTITLED.
12.10
AMENDMENTS.
THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT BY
AN AGREEMENT IN WRITING SIGNED BY EACH OF THE PARTIES.
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12.11
SCHEDULES.
ALL SCHEDULES ATTACHED HERETO ARE HEREBY INCORPORATED IN
AND MADE A PART OF THIS AGREEMENT AS IF SET FORTH IN FULL HEREIN.
CAPITALIZED
TERMS USED IN THE SCHEDULES HERETO BUT NOT OTHERWISE DEFINED THEREIN WILL HAVE
THE RESPECTIVE MEANINGS ASSIGNED TO SUCH TERMS IN THIS AGREEMENT.
12.12
CONSTRUCTION.
(A)
THIS AGREEMENT HAS BEEN PREPARED JOINTLY AND SHALL NOT BE STRICTLY
CONSTRUED AGAINST EITHER PARTY.
(B)
FOR PURPOSES OF THIS AGREEMENT, WHENEVER THE CONTEXT REQUIRES:
THE SINGULAR NUMBER SHALL INCLUDE THE PLURAL, AND VICE VERSA; THE MASCULINE
GENDER SHALL INCLUDE THE FEMININE AND NEUTER GENDERS; THE FEMININE GENDER SHALL
INCLUDE THE MASCULINE AND NEUTER GENDERS; AND THE NEUTER GENDER SHALL INCLUDE
THE MASCULINE AND FEMININE GENDERS.
(C)
EXCEPT AS OTHERWISE INDICATED, ALL REFERENCES IN THIS AGREEMENT TO
"ARTICLES," "SECTIONS," "EXHIBITS" AND "ATTACHMENTS" ARE INTENDED TO REFER TO
ARTICLES AND