SCHEDULES,
EXHIBITS, AND THE OTHER CERTIFICATES, DOCUMENTS, INSTRUMENTS AND WRITINGS
REFERRED TO HEREIN OR DELIVERED PURSUANT HERETO AND THE CONFIDENTIALITY
AGREEMENT, CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH
RESPECT TO THE SUBJECT MATTER
74
HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH WRITTEN AND
ORAL, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. EACH OF THE
PARTIES ACKNOWLEDGES THAT NO OTHER PARTY, NOR ANY AGENT OR ATTORNEY OF ANY OTHER
PARTY, HAS MADE ANY PROMISE, REPRESENTATION OR WARRANTY WHATSOEVER NOT CONTAINED
HEREIN, AND THAT SUCH PARTY HAS NOT EXECUTED OR AUTHORIZED THE EXECUTION OF THIS
AGREEMENT IN RELIANCE UPON ANY SUCH PROMISE, REPRESENTATION OR WARRANTY NOT
CONTAINED HEREIN.
11.4
WAIVER OF COMPLIANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, ANY FAILURE OF ANY PARTY TO COMPLY WITH ANY OBLIGATION, COVENANT,
AGREEMENT, OR CONDITION CONTAINED HEREIN MAY BE WAIVED ONLY IF SET FORTH IN AN
INSTRUMENT IN WRITING SIGNED BY THE PARTY OR PARTIES TO BE BOUND BY SUCH WAIVER,
BUT SUCH WAIVER OR FAILURE TO INSIST UPON STRICT COMPLIANCE WITH SUCH
OBLIGATION, COVENANT, AGREEMENT OR CONDITION SHALL NOT OPERATE AS A WAIVER OF,
OR ESTOPPEL WITH RESPECT TO, ANY OTHER FAILURE.
11.5
BINDING EFFECT; ASSIGNMENT; NO THIRD PARTY BENEFIT. THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR
RESPECTIVE HEIRS, LEGAL REPRESENTATIVES, SUCCESSORS, AND PERMITTED ASSIGNS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER THIS AGREEMENT
NOR ANY OF THE RIGHTS, INTERESTS, OR OBLIGATIONS HEREUNDER SHALL BE ASSIGNED BY
ANY OF THE PARTIES HERETO WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER
PARTIES, WHICH CONSENT MAY BE WITHHELD IN SUCH PARTY'S SOLE JUDGMENT; PROVIDED,
HOWEVER, THAT BUYER MAY COLLATERALLY ASSIGN THIS AGREEMENT TO ANY SOURCES OF
FINANCING SOLELY TO SECURE BUYER'S OBLIGATIONS UNDER ANY CREDIT ARRANGEMENTS
ENTERED INTO IN CONNECTION WITH THIS AGREEMENT (AND ANY REFINANCING OR
SUBSTITUTIONS THEREOF). ANY ASSIGNMENT IN VIOLATION OF THE FOREGOING SHALL BE
NULL AND VOID. EXCEPT AS PROVIDED IN SECTION 8.4 AND ARTICLE X, NOTHING IN THIS
AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO OR SHALL CONFER UPON ANY PERSON
OTHER THAN THE PARTIES HERETO, AND THEIR RESPECTIVE HEIRS, LEGAL
REPRESENTATIVES, SUCCESSORS, AND PERMITTED ASSIGNS, ANY RIGHTS, BENEFITS, OR
REMEDIES OF ANY NATURE WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT.
11.6
SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE
INVALID, ILLEGAL OR UNENFORCEABLE BY ANY APPLICABLE LAW OR PUBLIC POLICY, THIS
AGREEMENT SHALL BE CONSIDERED DIVISIBLE AND SUCH PROVISION SHALL BE DEEMED
INOPERATIVE TO THE EXTENT IT IS DEEMED UNENFORCEABLE SO LONG AS THE LEGAL
SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREIN IS NOT AFFECTED IN ANY MANNER
MATERIALLY ADVERSE TO ANY PARTY HERETO, AND IN ALL OTHER RESPECTS THIS AGREEMENT
SHALL REMAIN IN FULL FORCE AND EFFECT; PROVIDED, HOWEVER, THAT IF ANY SUCH
PROVISION MAY BE MADE ENFORCEABLE BY LIMITATION THEREOF, THEN SUCH PROVISION
SHALL BE DEEMED TO BE SO LIMITED AND SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW.
11.7