REFERRED TO HEREIN) CONSTITUTES THE
ENTIRE AGREEMENT AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH
WRITTEN AND ORAL, AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
OTHER THAN THE NON-DISCLOSURE AGREEMENT.
SECTION 9.08.
NO IMPLIED REPRESENTATIONS OR WARRANTIES.
EXCEPT FOR THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER THE COMPANY
NOR NEWCO MAKES ANY REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, CONCERNING ITSELF OR ANY OF ITS AFFILIATES, OR ITS OR ITS
AFFILIATES' RESPECTIVE BUSINESSES, ASSETS OR LIABILITIES.
SECTION 9.09.
ASSIGNMENT; BINDING EFFECT; BENEFIT.
NEITHER THIS AGREEMENT NOR
ANY OF THE RIGHTS, INTERESTS OR OBLIGATIONS HEREUNDER SHALL BE ASSIGNED BY ANY
OF THE PARTIES (WHETHER BY OPERATION OF LAW OR OTHERWISE) WITHOUT THE PRIOR
WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, THAT NEWCO MAY, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY, ASSIGN (A) ITS RIGHTS, INTERESTS AND OBLIGATIONS
TO ANY OF ITS AFFILIATES WITHOUT THE CONSENT OF THE COMPANY, OR (B) FOR
COLLATERAL SECURITY PURPOSES, ITS RIGHTS AND INTERESTS TO ANY LENDER PROVIDING
FINANCING TO NEWCO OR ANY OF ITS AFFILIATES; PROVIDED, FURTHER, THAT NO SUCH
ASSIGNMENT SHALL RELIEVE THE ASSIGNING PARTY OF ITS OBLIGATIONS HEREUNDER IF THE
ASSIGNEE DOES NOT PERFORM ITS OBLIGATIONS HEREUNDER.
SUBJECT TO THE PRECEDING
SENTENCE, THIS AGREEMENT SHALL BE BINDING UPON AND SHALL INURE TO THE BENEFIT OF
THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
ANY PURPORTED
ASSIGNMENT OR DELEGATION NOT PERMITTED UNDER THIS SECTION SHALL BE NULL AND
VOID.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY,
NOTHING IN THIS AGREEMENT, EXPRESSED OR IMPLIED, IS INTENDED OR SHALL BE
INTERPRETED TO CONFER ON ANY PERSON OTHER THAN THE PARTIES OR THEIR RESPECTIVE
PERMITTED SUCCESSORS AND ASSIGNS ANY RIGHTS, REMEDIES, OBLIGATIONS OR
LIABILITIES UNDER OR BY REASON OF THIS AGREEMENT (EXCEPT AS PROVIDED IN
SECTION 6.05).
SECTION 9.10.
SCHEDULES AND EXHIBITS.
ALL SCHEDULES AND EXHIBITS ATTACHED
HERETO AND REFERRED TO HEREIN ARE HEREBY INCORPORATED HEREIN AND MADE A PART OF
THIS AGREEMENT FOR ALL PURPOSES AS IF FULLY SET FORTH HEREIN.
SECTION 9.11.
COUNTERPARTS; EFFECT; FACSIMILE SIGNATURES.
THIS AGREEMENT MAY
BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN
ORIGINAL, BUT ALL OF WHICH SHALL CONSTITUTE 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 PARTIES.
THE EXCHANGE OF COPIES OF THIS
AGREEMENT AND OF SIGNATURE PAGES BY FACSIMILE OR ELECTRONIC TRANSMISSION SHALL
CONSTITUTE EFFECTIVE
46
EXECUTION AND DELIVERY OF THIS AGREEMENT AS TO THE PARTIES AND MAY BE USED IN
LIEU OF THE ORIGINAL AGREEMENT FOR ALL PURPOSES.
SIGNATURES OF THE PARTIES
TRANSMITTED BY FACSIMILE OR ELECTRONIC TRANSMISSION SHALL BE DEEMED TO BE THEIR
ORIGINAL SIGNATURES FOR ALL PURPOSES.
SECTION 9.12.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY
APPLICABLE CONFLICTS OF LAW PROVISIONS THEREOF THAT MAY REQUIRE THE APPLICATION
OF THE LAWS OF