Business Day following the date of mailing or, if couriered overnight, on
the next following Business Day; provided, however, that if at the time of
mailing or within three Business Days thereafter, there is or occurs a labor
dispute or other event that might reasonably be expected to disrupt the delivery
of documents by mail, any notice or other communication hereunder shall be
delivered or transmitted by means of overnight courier as set forth above.
10.5
COMPLETE AGREEMENT.
THIS AGREEMENT (ALONG WITH THE SCHEDULES,
DISCLOSURE LETTER, EXHIBITS AND APPENDICES HERETO) CONTAINS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE TERMS OF THE AGREEMENTS BETWEEN THE PARTIES WITH
RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY AND SUPERSEDES ALL OTHER PRIOR
AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT THERETO,
INCLUDING THE EXCLUSIVITY AGREEMENT, AS EXTENDED; PROVIDED THAT THIS AGREEMENT
SHALL NOT TERMINATE BUYER'S RIGHT TO OBTAIN EVIDENCE SUPPORTING THE PAYMENTS
MADE UNDER THE EXCLUSIVITY AGREEMENT, AS EXTENDED, AS CONTEMPLATED THEREBY AND
TO SEEK ADJUSTMENT TO THE EXTENT PERMITTED THEREUNDER OR EXTINGUISH BUYER'S
OBLIGATION TO MAKE PAYMENT FOR THE PERIOD FROM OCTOBER 1, 2006 THROUGH OCTOBER
15, 2006.
10.6
CONSTRUCTION.
EACH PROVISION OF THIS AGREEMENT HAS BEEN SUBJECT TO
MUTUAL CONSULTATION, NEGOTIATION AND AGREEMENT OF THE PARTIES AND THEREFORE IS
TO BE CONSTRUED AS IF THE PARTIES DRAFTED IT JOINTLY.
THE WORD "INCLUDING"
MEANS INCLUDING WITHOUT LIMITATION.
ALL REFERENCES TO THE MASCULINE HEREIN
SHALL INCLUDE THE FEMININE AND NEUTER, ALL REFERENCES TO THE NEUTER HEREIN SHALL
INCLUDE THE MASCULINE AND FEMININE, ALL REFERENCES TO THE PLURAL SHALL INCLUDE
THE SINGULAR AND ALL REFERENCES TO THE SINGULAR SHALL INCLUDE THE PLURAL.
10.7
HEADINGS; REFERENCES.
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE
FOR CONVENIENCE OF REFERENCE ONLY AND DO NOT AFFECT THE INTERPRETATION OR
CONSTRUCTION HEREOF.
WHEN A REFERENCE IS MADE IN THIS AGREEMENT TO A SECTION OR
AN ARTICLE, SUCH REFERENCE IS TO A SECTION OR ARTICLE OF THIS AGREEMENT UNLESS
OTHERWISE INDICATED.
10.8
AMENDMENT; WAIVER.
THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY
IN A WRITING REFERENCING THIS AGREEMENT AND DULY EXECUTED BY THE PARTIES.
THE
PROVISIONS OF THIS AGREEMENT MAY BE WAIVED ONLY IN A WRITING REFERENCING THIS
AGREEMENT SIGNED BY THE PARTY FROM WHOM THE WAIVER IS SOUGHT, AND A PARTY MAY
ENFORCE ANY PROVISION OF THIS AGREEMENT EVEN IF IT HAS PREVIOUSLY GRANTED A
WAIVER OR FAILED TO ENFORCE THAT OR ANY OTHER PROVISION OF THIS AGREEMENT.
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10.9
GOVERNING LAW.
THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.
10.10
SUBMISSION TO JURISDICTION.
EACH PARTY HEREBY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN CUYAHOGA COUNTY
IN THE CITY OF CLEVELAND, OHIO, WITH RESPECT TO ANY ACTION ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND AGREES