Common use of Acknowledgment by the Buyer Clause in Contracts

Acknowledgment by the Buyer. (A) The Buyer has conducted to its satisfaction, an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and, in making its determination to proceed with the transactions contemplated by this Agreement, the Buyer has relied on the results of its own independent investigation and verification and the representations and warranties of the Company and/or the Securityholders expressly and specifically set forth in this Agreement. SUCH REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND/OR THE SECURITYHOLDERS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS TO THE BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY OR THE SUBSIDIARIES OR THE QUALITY, QUANTITY OR CONDITION OF THE ASSETS OF THE COMPANY OR THE SUBSIDIARIES) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS. THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS DO NOT MAKE OR PROVIDE, AND THE BUYER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ANY OF THE SUBSIDIARIES’ ASSETS OR ANY PART THEREOF.

Acknowledgment by the Buyer. (A) The Buyer acknowledges that it has conducted to its satisfaction, satisfaction an independent investigation and verification of the businesses, operations, condition (financial conditionand otherwise), results of operations, assets, liabilities, properties and projected operations and prospects (financial and otherwise) of the Company Companies and, in making its determination to proceed with the transactions contemplated by this Agreement, the Buyer has relied on the results of its own independent investigation (without prejudice to the Buyer's rights set forth herein and verification arising under the Transaction Insurance in respect of the Insured Representations and Warranties and the representations and warranties of the Company and/or the Securityholders expressly and specifically set forth in this AgreementSeller's Insurance Policies. SUCH EXCEPT TO THE EXTENT EXPRESSLY SET FORTH HEREIN WITH RESPECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES BY CONTAINED IN SECTION 3(a) AND SECTION 4, NEITHER THE COMPANY AND/OR THE SECURITYHOLDERS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES SELLER NOR EITHER OF THE COMPANYCOMPANIES MAKES, THE SUBSIDIARIES AND THE SECURITYHOLDERS HAS MADE OR SHALL BE DEEMED TO THE BUYER IN CONNECTION HAVE MADE OR BE OBLIGATED WITH THE TRANSACTIONS CONTEMPLATED HEREBYRESPECT TO, ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE SELLER AND THE COMPANIES DISCLAIM ANY AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY OR THE SUBSIDIARIES OR THE QUALITY, QUANTITY OR CONDITION OF THE ASSETS OF THE COMPANY OR THE SUBSIDIARIES) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS. THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS DO NOT MAKE OR PROVIDE, AND THE BUYER HEREBY WAIVES, FURTHER AGREES THAT IT SHALL NOT ASSERT ANY WARRANTY CLAIM IN RESPECT OF ANY SUCH DISCLAIMED REPRESENTATION OR REPRESENTATION, EXPRESS OR IMPLIED, AS WARRANTY. EXCEPT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY EXTENT EXPRESSLY SET FORTH HEREIN WITH RESPECT TO SAMPLES, OR CONDITION THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY’S OR ANY OF SELLER EXPRESSLY SET FORTH IN SECTION 3(a) AND SECTION 4, THE SUBSIDIARIES’ BUYER AGREES THAT IT IS PURCHASING THE COMPANIES AND THEIR RESPECTIVE ASSETS OR ANY PART THEREOFAND LIABILITIES ON AN "AS IS" AND "WHERE IS" BASIS. THE BUYER ACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS. Without limiting the generality of the foregoing, nothing contained in the Summary Descriptive Memorandum dated September 1999 prepared by BAS or in any presentation of the businesses of the Companies or the Seller in connection with the transactions contemplated hereby, or in any cost estimates, projections or other predictions or forward-looking statements relating to the Companies or the Business (collectively, the "DESCRIPTIVE MATERIALS") shall be deemed to constitute a representation or warranty by or on behalf of the Seller or either of the - 77 - 79 Companies, and the Seller and the Companies hereby disclaim any express or implied representation or warranty as to the accuracy or completeness of any information contained in the Descriptive Materials or in any such other information or additional evaluation material, whether written or oral, made available in connection with the Buyer's evaluation of the Companies and any Liability in respect of such information or any errors therein or omissions therefrom. No Person has been authorized by the Seller or the Companies to make any representation or warranty on behalf of or relating to the Seller or the Companies or their businesses, operations, financial condition, assets, liabilities or prospects, and, if made, such representation or warranty shall not be relied upon as having been authorized by the Seller or either of the Companies.

Acknowledgment by the Buyer. (A) The Buyer has conducted to its satisfactionacknowledges that, an independent investigation and verification of the financial conditionexcept, results of operations, assets, liabilities, properties and projected operations of the Company and, in making its determination to proceed with the transactions contemplated by this Agreement, the Buyer has relied on the results of its own independent investigation and verification and the representations and warranties of the Company and/or the Securityholders expressly and specifically as set forth in the Transaction Agreements, no promise or inducement for this AgreementAgreement was offered by the Seller, the Acquired Companies or any of their respective representatives or relied upon by the Buyer. SUCH EXCEPT WITH RESPECT TO FRAUD AND INTENTIONAL MISREPRESENTATIONS, THE REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND/OR SELLER IN THE SECURITYHOLDERS TRANSACTION AGREEMENTS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS SELLER TO THE BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATIONBUT NOT LIMITED TO, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OR PROSPECTS OF ANY OF THE COMPANY OR ACQUIRED COMPANIES TO THE SUBSIDIARIES OR EXTENT NOT PROVIDED BY THE QUALITY, QUANTITY OR CONDITION OF THE ASSETS OF THE COMPANY OR THE SUBSIDIARIESSELLER HEREUNDER) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERSSELLER. THE COMPANYBUYER ACKNOWLEDGES THAT IT DID NOT RELY ON ANY REPRESENTATION OR WARRANTY NOT CONTAINED IN THIS AGREEMENT WHEN MAKING ITS DECISION TO ENTER INTO THIS AGREEMENT AND WILL NOT RELY ON ANY SUCH REPRESENTATION OR WARRANTY IN DECIDING TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. With respect to all materials that are described as having been made available or delivered to the Buyer, THE SUBSIDIARIES AND THE SECURITYHOLDERS DO NOT MAKE OR PROVIDEsuch materials shall be deemed to have been delivered or made available to the Buyer if the Buyer or its legal counsel have been granted access to an electronic data room or website in which such materials are available or by transmitting such materials to the Buyer or its legal counsel by any other electronic means, AND THE BUYER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ANY OF THE SUBSIDIARIES’ ASSETS OR ANY PART THEREOFin each case only to the extent that any such delivery can be reasonably demonstrated.

Acknowledgment by the Buyer. (A) The Buyer acknowledges that although it has conducted conducted, to its satisfaction, an independent investigation and verification of the financial condition, results of operations, assets, liabilities, properties and projected operations of the Company and, Companies based solely on information provided by the Seller in making its determination to proceed with the transactions contemplated by this Agreement, the Buyer has relied solely on the results of its own independent investigation and verification and the representations and warranties of the Company and/or the Securityholders Seller expressly and specifically set forth in this Agreement, including the Schedules and the Updated Schedules. SUCH EXPRESS REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND/OR SELLER IN THIS AGREEMENT AND IN ANY CERTIFICATE DELIVERED AT THE SECURITYHOLDERS CLOSING CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF ANY OF THE COMPANYCOMPANIES, THE SUBSIDIARIES SELLER AND THE SECURITYHOLDERS THEIR AFFILIATES TO THE BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED NATURE, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATIONBUT NOT LIMITED TO, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY COMPANIES NOT SET FORTH HEREIN OR IN ANY CERTIFICATE DELIVERED AT THE SUBSIDIARIES OR THE QUALITYCLOSING), QUANTITY OR CONDITION OF THE ASSETS OF THE COMPANY OR THE SUBSIDIARIES) ARE SPECIFICALLY DISCLAIMED BY THE COMPANYCOMPANIES, THE SUBSIDIARIES SELLER AND THEIR AFFILIATES. WITHOUT LIMITING THE SECURITYHOLDERSFOREGOING, THE BUYER SPECIFICALLY ACKNOWLEDGES THAT THE COMPANIES, THE SELLER AND THEIR AFFILIATES MAKE NO REPRESENTATION OR WARRANTY CONCERNING ANY PROJECTIONS PROVIDED BY OR ON BEHALF OF THE COMPANIES TO THE BUYER. THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS DO NOT MAKE OR PROVIDE, AND THE BUYER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ANY OF THE SUBSIDIARIES’ ASSETS OR ANY PART THEREOFACKNOWLEDGES THAT THIS WAIVER IS CONSPICUOUS.

Acknowledgment by the Buyer. (A) The Buyer acknowledges that it has conducted to its satisfaction, satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, liabilities and properties and projected operations of the Company Acquired Companies and, in making its determination to proceed with the transactions contemplated by this Agreement, the Buyer has relied relied, and will rely, on the results of its own independent investigation and verification and in addition to the representations and warranties of the Company and/or Acquired Companies and the Securityholders Seller expressly and specifically set forth in this Agreement, including the Schedules (and updated Schedules). The Buyer further acknowledges that, except as set forth herein, no promise or inducement for this Agreement was offered by the Seller, the Acquired Companies or any of their respective representatives or relied upon by the Buyer. EXCEPT WITH RESPECT TO FRAUD AND INTENTIONAL MISREPRESENTATIONS, SUCH REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND/OR THE SECURITYHOLDERS SELLER CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS SELLER TO THE BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATIONBUT NOT LIMITED TO, ANY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OR PROSPECTS OF ANY OF THE COMPANY OR ACQUIRED COMPANIES TO THE SUBSIDIARIES OR EXTENT NOT PROVIDED BY THE QUALITY, QUANTITY OR CONDITION OF THE ASSETS OF THE COMPANY OR THE SUBSIDIARIESSELLER HEREUNDER) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERSSELLER. THE COMPANYBUYER ACKNOWLEDGES THAT IT DID NOT RELY ON ANY REPRESENTATION OR WARRANTY NOT CONTAINED IN THIS AGREEMENT WHEN MAKING ITS DECISION TO ENTER INTO THIS AGREEMENT AND WILL NOT RELY ON ANY SUCH REPRESENTATION OR WARRANTY IN DECIDING TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. With respect to all materials that are described as having been made available or delivered to the Buyer, THE SUBSIDIARIES AND THE SECURITYHOLDERS DO NOT MAKE OR PROVIDEsuch materials shall be deemed to have been delivered or made available to the Buyer if the Buyer or its legal counsel have been granted access to an electronic data room or website in which such materials are available or by transmitting such materials to the Buyer or its legal counsel by any other electronic means, AND THE BUYER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ANY OF THE SUBSIDIARIES’ ASSETS OR ANY PART THEREOFin each case only to the extent that any such delivery can be reasonably demonstrated.

Acknowledgment by the Buyer. (A) The Buyer acknowledges that it has conducted to its satisfaction, satisfaction an independent investigation and verification of the financial condition, results of operations, assets, liabilities, liabilities and properties and projected operations of the Company and, in and the Subsidiaries. In making its determination to proceed with the transactions contemplated by this AgreementTransaction, the Buyer has relied and will rely solely on the results of its own independent investigation and verification and the limited representations and warranties of the Company and/or the Securityholders expressly and specifically set forth in this Agreementthe Transaction Agreements, including the Schedules attached hereto. SUCH REPRESENTATIONS AND WARRANTIES BY OF THE COMPANY AND/OR THE SECURITYHOLDERS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS COMPANY TO THE BUYER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBYTRANSACTION, AND THE BUYER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE EXPRESSED EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATIONBUT NOT LIMITED TO, ANY OTHER REPRESENTATION OR WARRANTY RELATING TO THE FUTURE OR HISTORICAL FINANCIAL CONDITION, RESULTS OF OPERATIONS, ASSETS OR LIABILITIES OF THE COMPANY OR THE SUBSIDIARIES OR THE QUALITY, QUANTITY OR CONDITION OF THE ASSETS PROSPECTS OF THE COMPANY OR THE SUBSIDIARIES) ARE SPECIFICALLY DISCLAIMED BY THE COMPANY, THE SUBSIDIARIES AND THE SECURITYHOLDERS. THE COMPANYBUYER ACKNOWLEDGES THAT IT DID NOT RELY ON ANY REPRESENTATION OR WARRANTY NOT CONTAINED IN THE TRANSACTION AGREEMENTS (INCLUDING THE SCHEDULES ATTACHED HERETO) WHEN MAKING ITS DECISION TO ENTER INTO THIS AGREEMENT AND WILL NOT RELY ON ANY SUCH REPRESENTATION OR WARRANTY IN DECIDING TO CONSUMMATE THE TRANSACTION. The Buyer further acknowledges that, except as set forth in the Transaction Agreements (including the Schedules attached hereto), no promise or inducement for this Agreement was offered by the Company or any of its representatives or relied upon by the Buyer. NONE OF THE SUBSIDIARIES FOREGOING IN THIS SECTION 7.12 LIMITS OR MODIFIES IN ANY WAY THE REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDERS DO NOT MAKE OR PROVIDE, AND COMPANY IN ARTICLE III OF THIS AGREEMENT NOR THE RIGHT OF THE BUYER HEREBY WAIVES, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY’S OR ANY OF THE SUBSIDIARIES’ ASSETS OR ANY PART THEREOFRELY THEREON.