obligations of the
parties hereto under this Agreement shall terminate and there shall be no
liability of either party hereto to the other party hereto, except (i) as set
forth in Section 6.2 and Section 6.3, and (ii) that nothing herein will relieve
any party from liability for any breach of this Agreement.
ARTICLE XI
MISCELLANEOUS
Section 11.1
Amendments. This Agreement may not be amended, altered or
modified except by written instrument executed by Buyer and Seller.
Section 11.2
Entire Agreement.
(a)
This Agreement, the Confidentiality Agreement, the Transition
Services Agreement, the Gas Agreement and the Electric Agreement constitute the
entire understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersede all prior agreements and understandings,
written and oral, between the parties with respect to the subject matter hereof.
33
(b)
BUYER ACKNOWLEDGES THAT NONE OF SELLER, ANY OF ITS AFFILIATES,
OR ANY REPRESENTATIVE OR ADVISOR OF ANY OF THEM HAS MADE ANY REPRESENTATION OR
WARRANTY TO BUYER EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE
TRANSITION SERVICES AGREEMENT, THE GAS AGREEMENT AND THE ELECTRIC AGREEMENT. IN
PARTICULAR, NO SUCH PERSON HAS MADE ANY REPRESENTATION OR WARRANTY TO BUYER WITH
RESPECT TO: (I) ANY INFORMATION OR MATERIALS DISTRIBUTED BY SELLER, THE COMPANY,
THEIR RESPECTIVE AFFILIATES OR ANY OTHER PERSON IN CONNECTION WITH THE PROPOSED
SALE OF THE COMPANY OR (II) ANY FINANCIAL PROJECTION OR FORECAST RELATING TO THE
COMPANY. WITH RESPECT TO ANY SUCH PROJECTION OR FORECAST DELIVERED BY OR ON
BEHALF OF SELLER TO BUYER, BUYER ACKNOWLEDGES THAT: (A) THERE ARE UNCERTAINTIES
INHERENT IN ATTEMPTING TO MAKE SUCH PROJECTIONS AND FORECASTS, (B) IT IS
FAMILIAR WITH SUCH UNCERTAINTIES, (C) IT IS TAKING FULL RESPONSIBILITY FOR
MAKING ITS OWN EVALUATION OF THE ADEQUACY AND ACCURACY OF ALL SUCH PROJECTIONS
AND FORECASTS SO FURNISHED TO IT AND (D) IT SHALL HAVE NO CLAIM AGAINST ANY SUCH
PERSON BASED ON ANY SUCH PROJECTION OR FORECAST.
Section 11.3
Interpretation. When reference is made in this Agreement to
any Article, Section, Exhibit or Schedule, such reference is to an Article,
Section, Exhibit or Schedule of this Agreement unless otherwise indicated. The
table of contents and 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 phrases "the date of this Agreement," "the date hereof' and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to the date set forth in the first paragraph of this Agreement. The
words "hereof', "herein", "hereby" and other words of similar import refer to
this Agreement as a whole unless otherwise indicated. Whenever the singular is
used herein, the same shall include the plural, and whenever the plural is used
herein, the same shall include the singular, where appropriate.
Section 11.4
Severability. Any term or provision of this Agreement which