LIMITED TO THE AMOUNT OF
THE CASH PAYMENT; PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY IN THE EVENT OF
A BREACH OR VIOLATION OF THE WARRANTIES AND REPRESENTATIONS SET FORTH IN
SECTIONS 5.1, 5.2, 5.3 OR 5.4(A).
7.5
EXCLUSIVITY OF REMEDIES.
THE PARTIES HEREBY
ACKNOWLEDGE AND AGREE THAT THEIR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY
AND ALL CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (OTHER THAN A
CLAIM FOR FRAUD OR FOR SPECIFIC PERFORMANCE OF THE TERMS OF THIS AGREEMENT)
SHALL BE PURSUANT TO, AND LIMITED BY, THE INDEMNIFICATION PROVISIONS SET FORTH
IN THIS SECTION 7.
SECTION 8
MISCELLANEOUS
8.1
NOTICES.
ALL NOTICES WITH RESPECT TO THIS
AGREEMENT WILL BE IN WRITING AND SENT BY HAND DELIVERY, OVERNIGHT DELIVERY VIA A
NATIONAL COURIER SERVICE, CERTIFIED MAIL OR FACSIMILE TO THE PARTIES AT THEIR
ADDRESSES OR FACSIMILE NUMBERS AS FOLLOWS:
If to Seller or Parent:
New Horizons Computer Learning Center of Atlanta, Inc.
Attention:
Office of General Counsel
1900 S. State College Blvd., Suite 200
Anaheim, CA 92806
Tel:
(714) 940-8000
Fax:
(714) 938-6007
If to Buyer or any Owner:
GBWH Atlanta, LLC
Attention:
David L. Weinstein
4775 American Way
Memphis, TN 38118
Tel:
(901) 328-2120
Fax:
(901) 362-9044
8.2
ENTIRE AGREEMENT; ASSIGNMENT.
THIS
AGREEMENT, TOGETHER WITH THE EXHIBITS AND SCHEDULES PROVIDED FOR HEREIN AND
ATTACHED HERETO, REPRESENTS THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES AND IS AND SHALL BE BINDING ON EACH PARTY AND ITS OR HIS
20
RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS.
THIS AGREEMENT MAY NOT BE ASSIGNED
WITHOUT THE WRITTEN CONSENT OF THE OTHER PARTY, AND MAY ONLY BE AMENDED BY A
WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF ALL PARTIES.
8.3
WAIVER.
THE FAILURE OF EITHER PARTY TO
ENFORCE ANY RIGHT, REMEDY OR CONDITION OF THIS AGREEMENT SHALL NOT BE DEEMED A
WAIVER THEREOF NOR SHALL IT VOID OR OTHERWISE AFFECT ITS RIGHT TO ENFORCE THE
SAME RIGHT, REMEDY OR CONDITION AT ANY SUBSEQUENT TIME.
8.4
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT SHALL SURVIVE AND
CONTINUE UNTIL THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS.
8.5
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
AND ALL OF WHICH TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
8.6
FACSIMILE SIGNATURES.
FOR PURPOSES OF
EXECUTION OF THIS AGREEMENT, FAXED SIGNATURE PAGES SHALL BE DEEMED THE SAME AS
ORIGINAL SIGNATURE PAGES.
8.7
GOVERNING LAW.
THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF
GEORGIA WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS PRINCIPLES.
(End of Page)
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IN WITNESS WHEREOF, the Parties have executed this Asset Purchase Agreement as
of the date first written above.
NEW HORIZONS COMPUTER LEARNING
CENTER OF ATLANTA, INC.
By:
Thomas J. Bresnan
Chief Executive Officer
GBWH ATLANTA, LLC
By:
David L. Weinstein
President
The undersigned Owners are