AGREEMENT;
PROVIDED, HOWEVER, THAT IN NO EVENT SHALL CHANGES, ALONE OR IN COMBINATION,
AFFECTING ANY OF THE INDUSTRIES IN WHICH SUCH ENTITY OPERATES GENERALLY OR THE
UNITED STATES OR WORLDWIDE ECONOMY GENERALLY, WHICH CHANGES IN EACH CASE DO NOT
DISPROPORTIONATELY AFFECT SUCH ENTITY IN ANY MATERIAL RESPECT, BE DEEMED TO
CONSTITUTE AN EFFECT OR A MATERIAL ADVERSE EFFECT.
FOR THE AVOIDANCE OF DOUBT,
ANY OF THE MATTERS SET FORTH ON SECTION 9.2(C) OF THE SELLER DISCLOSURE LETTER
SHALL NOT CONSTITUTE AN EFFECT OR A MATERIAL ADVERSE EFFECT.
52
(D)
FOR PURPOSES OF THIS AGREEMENT, THE TERM
"PERSON" SHALL MEAN ANY INDIVIDUAL, CORPORATION (INCLUDING ANY NON-PROFIT
CORPORATION), GENERAL PARTNERSHIP, LIMITED PARTNERSHIP, LIMITED LIABILITY
PARTNERSHIP, JOINT VENTURE, ESTATE, TRUST, COMPANY (INCLUDING ANY LIMITED
LIABILITY COMPANY OR JOINT STOCK COMPANY), FIRM OR OTHER ENTERPRISE,
ASSOCIATION, ORGANIZATION, ENTITY OR GOVERNMENTAL ENTITY.
(E)
FOR PURPOSES OF THIS AGREEMENT, THE TERM
"AFFILIATE" SHALL HAVE THE MEANING GIVEN TO SUCH TERM IN RULE 12B-2 OF
REGULATION 12B UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(F)
FOR PURPOSES OF THIS AGREEMENT, THE TERM,
"CONFIDENTIALITY AGREEMENTS" SHALL MEAN, COLLECTIVELY, (I) THE CONFIDENTIALITY
AGREEMENT, DATED JULY 8, 2004, BETWEEN SELLER AND PROVIDENCE EQUITY PARTNERS
INC. AND (II) THE CONFIDENTIALITY AGREEMENT, DATED JULY 8, 2004, BETWEEN SELLER
AND WARBURG PINCUS LLC.
9.3
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND
THE SAME AGREEMENT AND SHALL BECOME EFFECTIVE WHEN ONE OR MORE COUNTERPARTS HAVE
BEEN SIGNED BY EACH OF THE PARTIES AND DELIVERED TO THE OTHER PARTY, IT BEING
UNDERSTOOD THAT ALL PARTIES NEED NOT SIGN THE SAME COUNTERPART.
9.4
ENTIRE AGREEMENT; THIRD-PARTY
BENEFICIARIES.
THIS AGREEMENT, THE ANCILLARY AGREEMENTS AND THE DOCUMENTS AND
INSTRUMENTS AND OTHER AGREEMENTS AMONG THE PARTIES HERETO AS CONTEMPLATED BY OR
REFERRED TO HEREIN AND THEREIN, INCLUDING THE SELLER DISCLOSURE LETTER
(I) CONSTITUTE THE ENTIRE AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS,
BOTH WRITTEN AND ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF, IT BEING UNDERSTOOD THAT THE CONFIDENTIALITY AGREEMENT SHALL CONTINUE IN
FULL FORCE AND EFFECT UNTIL THE CLOSING AND SHALL SURVIVE ANY TERMINATION OF
THIS AGREEMENT AND (II) ARE NOT INTENDED TO CONFER UPON ANY OTHER PERSON ANY
RIGHTS OR REMEDIES HEREUNDER, EXCEPT AS SPECIFICALLY PROVIDED, FOLLOWING THE
CLOSING DATE, IN SECTIONS 5.7 AND ARTICLE VII.
9.5
SEVERABILITY.
IN THE EVENT THAT ANY
PROVISION OF THIS AGREEMENT OR THE APPLICATION THEREOF, BECOMES OR IS DECLARED
BY A COURT OF COMPETENT JURISDICTION TO BE ILLEGAL, VOID OR UNENFORCEABLE, THE
REMAINDER OF THIS AGREEMENT WILL CONTINUE IN FULL FORCE AND EFFECT AND THE
APPLICATION OF SUCH PROVISION TO OTHER PERSONS OR CIRCUMSTANCES WILL BE
INTERPRETED SO AS REASONABLY TO EFFECT THE INTENT OF THE PARTIES HERETO.
THE
PARTIES FURTHER AGREE TO REPLACE SUCH VOID OR UNENFORCEABLE PROVISION OF THIS
AGREEMENT WITH A VALID AND ENFORCEABLE PROVISION THAT WILL ACHIEVE, TO THE
GREATEST EXTENT POSSIBLE, THE ECONOMIC, BUSINESS AND OTHER PURPOSES