AND DO NOT FORM PART OF THIS
AGREEMENT.
11.7
ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED BY
EITHER PARTY WITHOUT THE CONSENT OF THE OTHER, EXCEPT THAT EACH PARTY MAY,
WITHOUT SUCH CONSENT, ASSIGN THIS AGREEMENT AND THE RIGHTS, OBLIGATIONS AND
INTERESTS OF SUCH PARTY, IN WHOLE OR IN PART, TO ANY OF ITS AFFILIATES, TO ANY
PURCHASER OF ALL OR SUBSTANTIALLY 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 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
CONFIDENTIAL
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 Act of
1934.
54
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