MADE OR SHALL BE DEEMED TO HAVE MADE, AND THE BUYER HAS NOT RELIED ON, ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT, EXPRESS OR IMPLIED, WITH
RESPECT TO THE SELLER, THE ACQUIRED COMPANIES, THE BUSINESS, THE SUBJECT MATTER
OF THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS, OR THE ACCURACY OR
COMPLETENESS OF ANY INFORMATION REGARDING THE SELLER, THE ACQUIRED COMPANIES,
THE BUSINESS, THE SUBJECT MATTER OF THIS AGREEMENT OR THE CONTEMPLATED
TRANSACTIONS FURNISHED OR MADE AVAILABLE TO THE BUYER AND ITS REPRESENTATIVES,
OTHER THAN THE RESPECTIVE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
OF THE ACQUIRED COMPANIES AND THE SELLER THAT ARE EXPRESSLY SET FORTH IN
ARTICLES 3 AND 4 OF THIS AGREEMENT, THE DISCLOSURE SCHEDULES, THE ANCILLARY
AGREEMENTS, THE COMPANY CLOSING CERTIFICATE AND THE FIRPTA CERTIFICATE AND (II)
NONE OF THE SELLER, EITHER OF THE ACQUIRED COMPANIES OR ANY OF THEIR RESPECTIVE
AFFILIATES OR REPRESENTATIVES SHALL HAVE OR BE SUBJECT TO ANY LIABILITY TO THE
BUYER OR ANY OTHER PERSON RESULTING FROM OR IN CONNECTION WITH THE DISSEMINATION
TO THE BUYER, THE BUYER'S REPRESENTATIVES OR ANY OTHER PERSON OR THE USE BY THE
BUYER, THE BUYER'S REPRESENTATIVES OR ANY OTHER PERSON OF ANY SUCH INFORMATION,
INCLUDING THE CIM AND ANY INFORMATION, DOCUMENTS OR MATERIAL MADE AVAILABLE TO
THE BUYER OR THE BUYER'S
-65-
REPRESENTATIVES IN ANY "DATA ROOM", MANAGEMENT PRESENTATION OR IN ANY OTHER FORM
IN CONNECTION WITH OR EXPECTATION OF THE ENTRY INTO THIS AGREEMENT OR THE
CONTEMPLATED TRANSACTIONS. THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT
ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESS OR
IMPLIED (INCLUDING ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION,
RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE BUSINESS, EITHER ACQUIRED
COMPANY OR TO THE CONTEMPLATED TRANSACTIONS) ARE SPECIFICALLY DISCLAIMED BY THE
SELLER AND ARE NOT BEING RELIED UPON BY BUYER OR ANY OF ITS REPRESENTATIVES OR
AFFILIATES.
11.5.
Severability.
If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or under
public policy, all other conditions and provisions of this Agreement will
nevertheless remain in full force and effect so long as the economic and legal
substance of the Contemplated Transactions are not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the Seller, the Acquired
Companies and the Buyer will negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible to the
end that the Contemplated Transactions are fulfilled in accordance with the
terms hereof to the greatest extent possible.
11.6.
Amendment.
This Agreement may be amended or modified, but only by
an instrument in writing executed by each of the Buyer and the Seller.
11.7.
Parties in Interest.
This Agreement will be binding upon and inure
solely to the benefit of the parties hereto, and except as provided in Sections
8.6, 8.7, 9.7, and 11.4, nothing in this Agreement,