to any item of Company property means, as of any
date of determination, the excess, if any, of (a) the fair market value of such
property as of such date (as determined under Section 3.3(d)) over (b) the
Carrying Value of such property as of such date (prior to any adjustment to be
made pursuant to Section 3.3(d) as of such date).
9
"Unrealized Loss" attributable to any item of Company property means, as of any
date of determination, the excess, if any, of (a) the Carrying Value of such
property as of such date (prior to any adjustment to be made pursuant to
Section 3.3(d) as of such date) over (b) the fair market value of such property
as of such date (as determined under Section 3.3(d)).
"Unvested Units" has the meaning set forth in Section 7.2.
Section 1.2.
Terms Generally.
In this Agreement, unless otherwise specified or
where the context otherwise requires:
(A)
THE HEADINGS OF PARTICULAR PROVISIONS OF THIS AGREEMENT ARE
INSERTED FOR CONVENIENCE ONLY AND WILL NOT BE CONSTRUED AS A PART OF THIS
AGREEMENT OR SERVE AS A LIMITATION OR EXPANSION ON THE SCOPE OF ANY TERM OR
PROVISION OF THIS AGREEMENT;
(B)
WORDS IMPORTING ANY GENDER SHALL INCLUDE OTHER GENDERS;
(C)
WORDS IMPORTING THE SINGULAR ONLY SHALL INCLUDE THE PLURAL AND
VICE VERSA;
(D)
THE WORDS "INCLUDE," "INCLUDES" OR "INCLUDING" SHALL BE DEEMED TO
BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION";
(E)
THE WORDS "HEREOF," "HEREIN" AND "HEREWITH" AND WORDS OF SIMILAR
IMPORT SHALL, UNLESS OTHERWISE STATED, BE CONSTRUED TO REFER TO THIS AGREEMENT
AS A WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT;
(F)
REFERENCES TO "ARTICLES," "EXHIBITS," "SECTIONS" OR "SCHEDULES"
SHALL BE TO ARTICLES, EXHIBITS, SECTIONS OR SCHEDULES OF OR TO THIS AGREEMENT;
(G)
REFERENCES TO ANY PERSON INCLUDE THE SUCCESSORS AND PERMITTED
ASSIGNS OF SUCH PERSON;
(H)
THE USE OF THE WORDS "OR," "EITHER" AND "ANY" SHALL NOT BE
EXCLUSIVE;
(I)
WHEREVER A CONFLICT EXISTS BETWEEN THIS AGREEMENT AND ANY OTHER
AGREEMENT AMONG PARTIES HERETO, THIS AGREEMENT SHALL CONTROL BUT SOLELY TO THE
EXTENT OF SUCH CONFLICT;
(J)
REFERENCES TO "$" OR "DOLLARS" MEANS THE LAWFUL CURRENCY OF THE
UNITED STATES OF AMERICA;
(K)
REFERENCES TO ANY AGREEMENT, CONTRACT OR SCHEDULE, UNLESS
OTHERWISE STATED, ARE TO SUCH AGREEMENT, CONTRACT OR SCHEDULE AS AMENDED,
MODIFIED OR SUPPLEMENTED FROM TIME TO TIME IN ACCORDANCE WITH THE TERMS HEREOF
AND THEREOF; AND
(L)
THE PARTIES HERETO HAVE PARTICIPATED COLLECTIVELY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT; ACCORDINGLY, IN THE EVENT AN
AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, IT IS THE INTENTION OF
THE PARTIES THAT THIS AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED COLLECTIVELY BY
THE PARTIES HERETO, AND THAT NO PRESUMPTION OR BURDEN OF PROOF SHALL ARISE
10
FAVORING OR DISFAVORING ANY PARTY HERETO BY VIRTUE OF THE AUTHORSHIP OF ANY
PROVISIONS OF THIS AGREEMENT.
ARTICLE II
GENERAL PROVISIONS
Section 2.1.
Formation.
The Company was formed as a Delaware limited liability
company on April 20, 2004