OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT IS NOT AFFECTED IN ANY MANNER
MATERIALLY ADVERSE TO EITHER PARTY HERETO.
UPON SUCH DETERMINATION THAT ANY
TERM OR OTHER PROVISION IS INVALID, ILLEGAL OR INCAPABLE OF BEING ENFORCED, THE
PARTIES HERETO SHALL NEGOTIATE IN GOOD FAITH TO MODIFY THIS AGREEMENT SO AS TO
EFFECT THE ORIGINAL INTENT OF THE PARTIES AS CLOSELY AS POSSIBLE IN AN
ACCEPTABLE MANNER IN ORDER THAT THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
ARE CONSUMMATED AS ORIGINALLY CONTEMPLATED TO THE GREATEST EXTENT POSSIBLE.
SECTION 11.05.
ENTIRE AGREEMENT.
THIS AGREEMENT, THE ANCILLARY AGREEMENTS AND
THE CONFIDENTIALITY AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ALL
PRIOR AGREEMENTS AND UNDERTAKINGS, BOTH WRITTEN AND ORAL, BETWEEN THE SELLER AND
THE PURCHASERS WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF.
SECTION 11.06.
ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED BY OPERATION OF
LAW OR OTHERWISE WITHOUT THE EXPRESS WRITTEN CONSENT OF THE SELLER OR THE
PURCHASERS (WHICH CONSENT MAY BE GRANTED OR WITHHELD IN THE SOLE DISCRETION OF
THE SELLER OR THE PURCHASERS), AS THE CASE MAY BE; PROVIDED, HOWEVER, THAT THE
PURCHASERS SHALL HAVE THE RIGHT TO ASSIGN ANY OF THEIR RIGHTS (BUT NONE OF THEIR
OBLIGATIONS) HEREUNDER TO ONE OR MORE OF THEIR AFFILIATES WITHOUT THE CONSENT OF
THE SELLER.
ANY ATTEMPTED ASSIGNMENT IN VIOLATION OF THIS SECTION 11.06 SHALL
BE NULL AND VOID.
SECTION 11.07.
AMENDMENT.
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT
(A) BY AN INSTRUMENT IN WRITING SIGNED BY, OR ON BEHALF OF, THE SELLER AND THE
PURCHASERS OR (B) BY A WAIVER IN ACCORDANCE WITH SECTION 11.08.
SECTION 11.08.
WAIVER.
EITHER PARTY TO THIS AGREEMENT MAY (A) EXTEND THE TIME
FOR THE PERFORMANCE OF ANY OF THE OBLIGATIONS OR OTHER ACTS OF THE OTHER PARTY,
(B) WAIVE ANY
84
INACCURACIES IN THE REPRESENTATIONS AND WARRANTIES OF THE OTHER PARTY CONTAINED
HEREIN OR IN ANY DOCUMENT DELIVERED BY THE OTHER PARTY PURSUANT HERETO OR
(C) WAIVE COMPLIANCE WITH ANY OF THE AGREEMENTS OF THE OTHER PARTY OR CONDITIONS
TO SUCH PARTY'S OBLIGATIONS CONTAINED HEREIN.
ANY SUCH EXTENSION OR WAIVER
SHALL BE VALID ONLY IF SET FORTH IN AN INSTRUMENT IN WRITING SIGNED BY THE PARTY
TO BE BOUND THEREBY.
ANY WAIVER OF ANY TERM OR CONDITION SHALL NOT BE CONSTRUED
AS A WAIVER OF ANY SUBSEQUENT BREACH OR A SUBSEQUENT WAIVER OF THE SAME TERM OR
CONDITION, OR A WAIVER OF ANY OTHER TERM OR CONDITION OF THIS AGREEMENT.
THE
FAILURE OF EITHER PARTY HERETO TO ASSERT ANY OF ITS RIGHTS HEREUNDER SHALL NOT
CONSTITUTE A WAIVER OF ANY OF SUCH RIGHTS.
SECTION 11.09.
NO THIRD PARTY BENEFICIARIES.
THIS AGREEMENT SHALL BE BINDING
UPON AND INURE SOLELY TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS AND NOTHING HEREIN, EXPRESS OR IMPLIED
(EXCLUDING THE PROVISIONS OF ARTICLE IX RELATING TO INDEMNIFIED PARTIES), IS
INTENDED TO OR SHALL CONFER UPON ANY OTHER PERSON ANY LEGAL OR EQUITABLE