AS POSSIBLE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW IN AN
ACCEPTABLE MANNER TO THE END THAT THE TRANSACTIONS CONTEMPLATED HEREBY ARE
FULFILLED TO THE EXTENT POSSIBLE.
(E)
NEITHER PARTY SHALL BY ANY ACT DELAY, INDULGENCE, OMISSION OR
OTHERWISE BE DEEMED TO HAVE WAIVED ANY RIGHT OR REMEDY HEREUNDER OR WITH RESPECT
TO A BREACH BY THE OTHER PARTIES HERETO OF ANY OF THE TERMS AND CONDITIONS
HEREOF.
NO FAILURE TO EXERCISE, NOR ANY DELAY IN EXERCISING, ON THE PART OF
EITHER PARTY, ANY RIGHT, POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER
THEREOF.
NO SINGLE OR PARTIAL EXERCISE OF ANY RIGHT, POWER OR PRIVILEGE
HEREUNDER SHALL PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE
OF ANY OTHER RIGHT, POWER OF PRIVILEGE.
A WAIVER BY EITHER PARTY OF ANY RIGHT
OR REMEDY HEREUNDER ON ANY ONE OCCASION SHALL NOT BE CONSTRUED AS A BAR TO ANY
RIGHT OR REMEDY WHICH SUCH PARTY WOULD OTHERWISE HAVE ON ANY FUTURE OCCASION.
6
(F)
THE RIGHTS AND REMEDIES PROVIDED HEREIN ARE CUMULATIVE, MAY BE
EXERCISED SINGLY OR CONCURRENTLY AND ARE NOT EXCLUSIVE OF ANY OTHER RIGHTS OR
REMEDIES EXISTING AT LAW OR IN EQUITY OR OTHERWISE.
(G)
THE HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE
PURPOSES ONLY AND SHALL NOT AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF
THIS AGREEMENT.
WHENEVER THE WORDS "INCLUDE," "INCLUDES" OR "INCLUDING" ARE
USED IN THIS AGREEMENT, THEY SHALL BE DEEMED TO BE FOLLOWED BY THE WORDS
"WITHOUT LIMITATION."
THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND WORDS OF
SIMILAR IMPORT WHEN USED IN THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A
WHOLE AND NOT TO ANY PARTICULAR PROVISION OF THIS AGREEMENT UNLESS THE CONTEXT
OTHERWISE REQUIRES.
THE DEFINITIONS CONTAINED IN THIS AGREEMENT ARE APPLICABLE
TO THE SINGULAR AS WELL AS THE PLURAL FORMS OF SUCH TERMS AND TO THE MASCULINE
AS WELL AS TO THE FEMININE AND NEUTER GENDERS OF SUCH TERM.
(H)
ANY PROVISION OF THIS AGREEMENT MAY BE AMENDED OR WAIVED IF, AND
ONLY IF, SUCH AMENDMENT OR WAIVER IS IN WRITING AND SIGNED, IN THE CASE OF AN
AMENDMENT, BY THE PARTIES HERETO, OR IN THE CASE OF A WAIVER, BY THE PARTY
AGAINST WHOM THE WAIVER IS TO BE EFFECTIVE.
(I)
THIS AGREEMENT, ALONG WITH THE AMENDED ADVISORY AGREEMENT,
CONTAINS THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
ORAL OR WRITTEN (INCLUDING, WITHOUT LIMITATION, THE PRELIMINARY TERM SHEET
EXECUTED BY THE PARTIES ON DECEMBER 8, 2005), WITH RESPECT TO SUCH MATTERS.
NOTWITHSTANDING THE FOREGOING, THE ADVISOR AND THE COMPANY ACKNOWLEDGE THAT
(1) SECTION 8.13 OF THE MERGER AGREEMENT, AMONG VARIOUS PARTIES INCLUDING THE
ADVISOR AND THE COMPANY, HAS PROVISIONS WHICH ARE CURRENTLY BINDING ON THE
ADVISOR AND THE COMPANY, AND TO THE EXTENT SECTION 8.13 OF THE MERGER AGREEMENT
IS INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THIS AGREEMENT
SHALL SUPERSEDE SECTION 8.13 AND (2) THERE SHALL BE NO DEFERRAL OF