ALL OF ITS ASSETS IN THE LINE OF BUSINESS TO
WHICH THIS AGREEMENT PERTAINS OR TO ANY SUCCESSOR CORPORATION RESULTING FROM ANY
MERGER OR CONSOLIDATION
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission Pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Ace of
1934.
54
OF SUCH PARTY WITH OR INTO SUCH CORPORATIONS.
11.8
FORCE MAJEURE.
NEITHER PARTY SHALL BE LIABLE FOR
FAILURE OF OR DELAY IN PERFORMING OBLIGATIONS SET FORTH IN THIS AGREEMENT, AND
NEITHER SHALL BE DEEMED IN BREACH OF ITS OBLIGATIONS, IF SUCH FAILURE OR DELAY
IS DUE TO NATURAL DISASTERS OR ANY CAUSES BEYOND THE REASONABLE CONTROL OF SUCH
PARTY.
IN EVENT OF SUCH FORCE MAJEURE, THE PARTY AFFECTED THEREBY SHALL USE
REASONABLE EFFORTS TO CURE OR OVERCOME THE SAME AND RESUME PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER.
11.9
CONSTRUCTION.
THE PARTIES HERETO ACKNOWLEDGE AND
AGREE THAT:
(A) EACH PARTY AND ITS COUNSEL REVIEWED AND NEGOTIATED THE TERMS
AND PROVISIONS OF THIS AGREEMENT AND HAVE CONTRIBUTED TO ITS REVISION; (B) THE
RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE RESOLVED AGAINST THE
DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT;
AND (C) THE TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED FAIRLY AS
TO EACH PARTY HERETO AND NOT IN A FAVOR OF OR AGAINST ANY PARTY, REGARDLESS OF
WHICH PARTY WAS GENERALLY RESPONSIBLE FOR THE PREPARATION OF THIS AGREEMENT.
11.10
SEVERABILITY.
IF ANY PROVISION(S) OF THIS AGREEMENT ARE
OR BECOME INVALID, ARE RULED ILLEGAL BY ANY COURT OF COMPETENT JURISDICTION OR
ARE DEEMED UNENFORCEABLE UNDER THEN CURRENT APPLICABLE LAW FROM TIME TO TIME IN
EFFECT DURING THE TERM HEREOF, IT IS THE INTENTION OF THE PARTIES THAT THE
REMAINDER OF THIS AGREEMENT SHALL NOT BE AFFECTED THEREBY PROVIDED THAT A
PARTY'S RIGHTS UNDER THIS AGREEMENT ARE NOT MATERIALLY AFFECTED.
THE PARTIES
HERETO COVENANT AND AGREE TO RENEGOTIATE ANY SUCH TERM, COVENANT OR APPLICATION
THEREOF IN GOOD FAITH IN ORDER TO PROVIDE A REASONABLY ACCEPTABLE ALTERNATIVE TO
THE TERM, COVENANT OR CONDITION OF THIS AGREEMENT OR THE APPLICATION THEREOF
THAT IS INVALID, ILLEGAL OR UNENFORCEABLE, IT BEING THE INTENT OF THE PARTIES
THAT THE BASIC PURPOSES OF THIS AGREEMENT ARE TO BE EFFECTUATED.
11.11
STATUS.
NOTHING IN THIS AGREEMENT IS INTENDED OR SHALL BE
DEEMED TO CONSTITUTE A PARTNER, AGENCY, EMPLOYER-EMPLOYEE, OR JOINT VENTURE
RELATIONSHIP BETWEEN THE PARTIES.
11.12
DISPUTE RESOLUTION.
THE PARTIES RECOGNIZE THAT A BONA
FIDE DISPUTE AS TO CERTAIN MATTERS MAY FROM TIME TO TIME ARISE DURING THE TERM
OF THIS AGREEMENT RELATING TO EITHER PARTY'S RIGHTS AND/OR OBLIGATIONS HEREUNDER
OR OTHERWISE RELATING TO THE VALIDITY, ENFORCEABILITY OR PERFORMANCE OF THIS
AGREEMENT, INCLUDING DISPUTES RELATING TO ALLEGED BREACH OR TERMINATION OF
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission Pursuant to the Company's application requesting
confidential investment under Rule 24b-2 under the Securities Exchange Ace of
1934.
55
THIS AGREEMENT