Common use of Buyer’s Due Diligence Clause in Contracts

Buyer’s Due Diligence. Buyer acknowledges that, except for the matters that are expressly covered by the provisions of this Agreement, Buyer is relying on its own investigation and analysis in entering into the Transaction Documents and the Transactions. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance of this Agreement. Buyer acknowledges that it is acquiring the Business without any representation or warranty, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of the foregoing, and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect to the Business, including, without limitation, (a) the information set forth in the Confidential Information Memorandum relating to the Business dated June 2002, (b) any other information provided to Buyer pursuant to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Buyer with respect to the revenues or profitability which may arise from the operation of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraud.

Buyer’s Due Diligence. For purposes of assisting the Buyer acknowledges thatto conduct an appropriate inquiry into the investment merits of the Stock ("due diligence"), except for the matters that are expressly covered Company will provide the Buyer with certain financial and other information about the Company, its securities, the market in which the Company's securities trade, the Company's products/services, prospects, management, results of operations, financial condition and otherwise in respect of the "risks" attending the purchase of the Stock by the provisions Buyer as provided for and contemplated by this Agreement as described on the schedule attached hereto and incorporated herein as Exhibit B ("Due Diligence Materials"). After the Buyer has had the opportunity to review such Due Diligence Materials, the Buyer will be provided the opportunity to conduct such other and further due diligence as the Buyer (and, possibly or at the Buyer's election, his offeree representative) shall deem appropriate under the circumstances for purposes of the Buyer's consummation of the subject stock purchase transaction at the Closing, including without limitation the submission by the Buyer of written questions to the Company, interviews with the Company's management, a tour of the Company's corporate offices and production facility in Pomona, California, demonstration of the Company's products/services, communication with the Company's commercial bank, outside professionals and vendors/suppliers/customers. When and if the Buyer has performed such due diligence to its sole and exclusive satisfaction, then the Buyer may proceed to consummate the subject purchase transaction at the Closing. Completion of the Buyer's due diligence to the Buyer's (including, possibly or at the election of the Buyer, the Buyer's offeree representative) sole satisfaction and election shall be a condition to the Buyer's obligation to consummate the stock purchase transaction and the Closing under this Agreement (and, in the event that the Buyer has not previously notified the Company in writing as to the satisfactory completion of such due diligence, the consummation of the stock purchase transaction at the Closing by the Buyer shall constitute final and conclusive confirmation by the Buyer to the Company and otherwise that such due diligence has in fact been finally and fully so completed). Costs/expenses associated with the due diligence conducted by the Buyer shall be the responsibility of and be paid by the Buyer. The Buyer hereby acknowledges to the Company its awareness that the purchase of and an investment in the securities of the Company, including the Stock which is the subject of this Agreement, Buyer is relying on its own investigation and analysis in entering into the Transaction Documents and the Transactions. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance of this Agreement. Buyer acknowledges that it is acquiring the Business without any representation or warranty, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of the foregoing, and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect subject to the Business, including, without limitation, (a) the information set forth in the Confidential Information Memorandum relating to the Business dated June 2002, (b) any other information provided to Buyer pursuant to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Buyer with respect to the revenues or profitability which may arise from the operation of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraudsubstantial risk.

Buyer’s Due Diligence. Buyer acknowledges thatshall be entitled to examine the Due Diligence Materials, and any other documents and information that Buyer reasonably requests and Seller is able to furnish, and to perform (and to cause its employees and agents to perform) any and all other inspections and investigations on, of and with respect to the Property as Buyer shall deem appropriate, and pursue all needed government approvals and permits for Buyer’s intended development and use of the Property as a freight transportation and supply chain service provider. Seller shall in good faith (at no cost to Seller) cooperate with Buyer in its performance of such inspections and investigations. Buyer shall repair any damage to the Property (and any adjacent property) caused by Buyer or its employees, contractors or agents during the conduct of such inspections and investigations, and defend, indemnify and hold Seller harmless from and against all claims brought against Seller that are caused by Buyer (or its employees, contractors and agents) during the course of such examinations, inspections and investigations except for losses, costs, claims, damages or expenses caused by (i) Seller, its agents, employees, contractors and/or subcontractors and/or (ii) the matters condition of the Property before Xxxxx’s entry thereon. Buyer’s obligation under the foregoing sentence shall survive termination of this Agreement and the closing of Buyer’s purchase of the Property. The period commencing on the Effective Date and expiring thirty (30) days thereafter shall hereinafter be referred to as the “Due Diligence Period”. Anything in this Agreement to the contrary notwithstanding, Buyer shall be entitled to terminate this Agreement at any time during the Due Diligence Period by notifying Seller of such termination in writing prior to the expiration of the Due Diligence Period, which Buyer may do or refrain from doing in Buyer’s sole and absolute discretion, for any reason or no reason at all. In the event that are expressly covered by this Agreement is terminated pursuant to this Section 3.2, the provisions of Deposit shall be promptly returned to Buyer, and upon which Buyer and Seller shall have no further rights or obligations under this Agreement, Buyer is relying on its own investigation and analysis in entering into except those which expressly survive the Transaction Documents and the Transactions. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance termination of this Agreement. If Buyer acknowledges that it is acquiring does not terminate this Agreement during the Business without any representation Due Diligence Period, the Deposit shall become non-refundable (except due to Seller’s default, or warranty, express or implied, by Seller or any of its Affiliates except as otherwise expressly set forth herein. In furtherance of the foregoing, and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect to the Business, including, without limitation, (a) the information set forth in the Confidential Information Memorandum relating to the Business dated June 2002, (b) any other information provided to Buyer pursuant to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Buyer with respect to the revenues or profitability which may arise from the operation of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraud).

Buyer’s Due Diligence. Buyer acknowledges thatthat Transferors have afforded Buyer and its agents and representatives an opportunity to review all of the Due Diligence Materials prior to the date of this Agreement and, subject to the express terms of this Agreement, that Buyer has completed such review to its satisfaction. Buyer has assumed fully the risk that Buyer has failed completely and adequately to review and consider any or all of such materials. But for Buyers' expression of satisfaction with the content of the Due Diligence Materials, Buyer would not have entered into this Agreement; but for Buyer's expression of such satisfaction and assumption of any risk as to the character of its review and consideration of the Due Diligence Materials, Transferors would not have entered into this Agreement. Nevertheless, during the Due Diligence Period, Buyer shall be permitted to make a further review of the Investigation Matters to determine whether any Material Adverse Matters Amounts exist with respect to the Properties and the extent of any such Material Adverse Matters Amount. After the Approval Date, Buyer shall have no further right of inspection and review with respect to the Properties except solely for the matters purpose of assisting Buyer in its management transition. The rights and obligations of the parties arising out of Buyer's determination and assertion prior to the Approval Date that are expressly covered such Material Adverse Matters Amounts do exist shall be limited to Investigation Matters and governed solely by the provisions of this Agreement, Buyer is relying on its own investigation and analysis in entering into the Transaction Documents and the TransactionsSection 4(f) below. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance of this Agreement. Buyer acknowledges that it is acquiring the Business without any representation or warranty, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of Subject to the foregoing, and not as more fully provided below, Transferors agree to assist and cooperate with Buyer in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect obtaining access to the Business, including, without limitation, Property and certain documents relating thereto for purposes of inspection and due diligence. (a) Physical Inspection of the information set forth in Property. At any time(s) reasonably requested by Buyer following the Confidential Information Memorandum relating Effective Date and prior to Closing, Transferors shall afford authorized representatives of Buyer reasonable access to the Business dated June 2002, (b) any other information provided to Buyer pursuant Property for purposes of informing itself as to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Investigation Matters, satisfying Buyer with respect to the revenues or profitability which may arise from the operation representations, warranties and covenants of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or Transferors contained herein and with respect to the satisfaction of any related matterBuyer's Conditions Precedent to the Closing; provided, however, that Buyer shall use commercially reasonable efforts not to unreasonably disturb or interfere with the rights of Tenants. With respect Buyer shall provide Transferors with not less than forty-eight (48) hours advance written notice of any such inspections, and Transferors, at their election, shall have the right to have a representative present during any projection such investigations. Buyer hereby agrees to indemnify and hold the Transferors harmless from any claims, liabilities, costs, damages or forecast delivered injury to persons or property resulting from such investigations or caused by Buyer or on behalf of Seller its authorized representatives during their entry and investigations prior to Buyerthe Closing. In the event this Agreement is terminated, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with shall restore each of the foregoingProperties to substantially the condition in which it was found. Buyer has no knowledge This indemnity shall survive the termination of any facts and/or circumstances that would make any of this Agreement or the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed Closing, as a waiver of a defense to claims for fraudapplicable.

Buyer’s Due Diligence. Buyer acknowledges that, during the Due Diligence Period, Buyer will or has had the opportunity to perform such studies, inspections, examinations, investigations and evaluations of the Property as Buyer, in Buyer’s discretion, deems necessary or appropriate. Buyer represents to Seller that Buyer is a sophisticated purchaser, owner, developer and manager of real property, and that except for the matters that are expressly covered by the provisions limited representations of Seller specifically set forth in this AgreementParagraph, Buyer is relying on its own investigation will rely solely upon such studies, inspections, examinations, investigations and analysis evaluations in entering into purchasing the Transaction Documents and the TransactionsProperty. Buyer is an informed understands and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance of this Agreement. Buyer acknowledges agrees that it is acquiring the Business without any Property in an “as is” condition. Buyer acknowledges that Seller makes and will make no representation or warrantywarranty concerning environmental conditions heretofore, now or hereafter existing on properties adjoining or proximate to the Property or the current zoning of the Property. Notwithstanding anything in this Agreement, it is expressly understood and agreed that Seller has not made and does not and will not make any representations or warranties, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of the foregoing, and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect to the Businessquality, physical condition, expenses, legal status, zoning, value, utility or development or operating potential of the Property, the absence of any hazardous substances on, in, under or near the Property, or any other matter or thing affecting or relating to the Property or this Agreement (including, without limitation, (awarranties of merchantability and/or of fitness for a particular purpose) which might be pertinent in considering whether to purchase the information set forth in Property or to make and enter into this Agreement, and Buyer hereby acknowledges that Seller has not made, and Buyer has not relied upon, any such representations, and releases and discharges Seller, its successors and assigns, of and from any liability to Buyer, its successors and assigns, existing or arising under the Confidential Information Memorandum relating to the Business dated June 2002statutes, (b) any other information provided to Buyer pursuant to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Buyer with respect to the revenues or profitability which may arise from the operation laws and regulations of the Business State of Florida. Seller is not liable or bound in any manner by any warranties, either before expressed or after the Closing Dateimplied, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc.guaranties, or any of their respective Affiliates promises, statements, representations or representatives with respect thereto information pertaining to the Property or with respect the value thereof made or furnished by any broker or any real estate agent, broker, employee, servant or other person representing or purporting to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraudrepresent Seller.

Buyer’s Due Diligence. Buyer acknowledges thatshall have until the Inspection Objection Deadline (2c), except for the matters that are expressly covered by the provisions of this Agreement, Buyer is relying on its own investigation and analysis in entering into the Transaction Documents and the Transactions. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection with the execution, delivery and performance of this Agreement. Buyer acknowledges that it is acquiring the Business without any representation or warranty, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance to conduct a due diligence review of the foregoing, property to satisfy himself as to any matter he deems relevant or advisable regarding the Property and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, of Seller or any of its advisorscompleting the purchase contemplated by this Contract, including, without limitationbut not limited to, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect to the Business, including, without limitation, (a) the information set forth in the Confidential Information Memorandum relating to the Business dated June 2002, (b) any other information documents provided to Buyer pursuant to paragraph 9 hereof, physical inspections of the Confidentiality Agreement Property including but not limited to water tests, investigation of water rights included with the sale of the Property, and review of relevant building and zoning ordinances. To this end, (a) Seller will cooperate with Buyer in supplying upon request any documentation or Section 8.15 information Seller can supply at no additional cost or expense to Seller; and (cb) any financial projection Buyer or forecast delivered to Buyer with respect its designees shall be permitted access to the revenues property at all reasonable times to conduct such examinations and make such tests as Buyer shall deem appropriate. All such examinations or profitability tests shall be at Buyer’s expense. Following any such test or examination, Buyer shall restore the Property to its condition extent immediately prior to those tests or examinations and Buyer shall indemnify and hold Seller harmless from any liens, damages, claims or demands which may arise from the operation any of such Buyer’s inspections, all as more particularly provided in paragraph 10 of the Business either before Contract. If, prior to midnight, MST, on the Inspection Objection Deadline (2c), Buyer advises Seller or after Seller’s agent in writing that it has found his inspection, or some portion of it, unsatisfactory, and Buyer and Seller cannot come to an agreement of mutual resolution thereof within the Closing Datefollowing four (4) days, then this Contract shall (except as otherwise expressly represented to in this Agreement) form terminate and the basis parties shall be relieved of any claim against Seller or any of its advisors includingfurther duties hereunder, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing excepting those contained in this Section 6.09 will paragraph above relating to indemnification or restoration of any testing damage, and Xxxxx’s xxxxxxx money deposit, together with any accrued interest, shall be construed as a waiver of a defense promptly returned to claims for fraudthe Buyer. If Buyer fails to give any such notice, then this condition to closing shall be deemed fully satisfied.

Buyer’s Due Diligence. Buyer acknowledges that3- IV.1 Inspection, except for the matters that are expressly covered by the provisions of this AgreementFeasibility Study, Buyer is relying on its own investigation and analysis in entering into the Transaction Documents and the TransactionsReview. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigationBuyer, and has been provided with its employees and has evaluated such documents -------------------------------------- agents, shall have the right to enter upon the Property to inspect the Property, including Seller's books, records and informationfiles relating thereto, as it has and to conduct any tests, studies, appraisals, or inspections deemed necessary in connection with the executionby Buyer, delivery including but not limited to an environmental compliance and performance of this Agreement. Buyer acknowledges that it is acquiring the Business without any representation or warranty, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of the foregoingconditions review satisfactory to Buyer, and not in limitation thereof, Buyer acknowledges that no representation or warranty, express or implied, to make all inquiries of Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, third parties with respect to the BusinessProperty ("Inspections"). For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by Buyer, and in order to induce Seller to grant Buyer the rights set forth in this section, Buyer agrees to indemnify and defend Seller, and hold Seller, Seller's agents, representatives, employees and affiliates harmless, from and against, and reimburse Seller, Seller's agents, representatives, employees and affiliates with respect to, any and all liabilities, debts, damages, losses, claims, causes of action, suit or suits, costs, and expenses of any nature whatsoever (including, without limitationbut not limited to, court costs and reasonable attorneys' fees) that such parties may suffer or incur as a result of or arising out of Buyer's (aor Buyer's agents' or employees') entry upon the information Property or Buyer's exercise of its rights under this section; provided, however, in no event shall the foregoing indemnity extend to the negligence or willful misconduct of Seller or Seller's agents or employees. Notwithstanding anything to the contrary, the agreements of Buyer to indemnify Seller, Seller's agents, representatives, employees and affiliates set forth in the Confidential Information Memorandum relating immediately preceding sentence shall survive any Closing or any termination of this Contract. In conducting its Inspections, Buyer covenants and agrees (i) not to interfere with the activity of any tenant or any person occupying or providing services to the Business dated June 2002Property, (bii) not to reveal to any third party not approved in writing by Seller (other information provided to Buyer pursuant than in a compulsory legal proceeding or to the Confidentiality Agreement Buyer's counsel, lenders, investors or Section 8.15 or consultants) the results of its Inspections, and (ciii) any financial projection or forecast delivered to restore the Property to its original condition upon the conclusion of its Inspections. Buyer also agrees to provide Seller with respect to the revenues or profitability which may arise from the operation of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis a copy of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make any of the representations and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraudInspections.

Buyer’s Due Diligence. On or before July 30, 2015 (the “Due Diligence Expiration Date”), Buyer acknowledges thatshall have completed its due diligence investigation of the Property and shall have approved or disapproved such matters as Buyer deems appropriate in its sole and absolute discretion with respect to the Property, except including without limitation any items related to the physical condition of the Property or the Property’s suitability for Buyer’s intended purpose. Notwithstanding anything in this Agreement to the matters that are expressly covered contrary, Buyer shall have the right until 6:00 p.m. Pacific Time on the Due Diligence Expiration Date, to elect in its sole and absolute discretion, by the provisions of giving written notice to Seller and Escrow Holder, (A) to terminate this Agreement, Buyer is relying on or (B) to confirm its own investigation and analysis in entering into the Transaction Documents and the Transactions. Buyer is an informed and sophisticated participant in the Transactions and has undertaken such investigation, and has been provided with and has evaluated such documents and information, as it has deemed necessary in connection satisfaction with the executionProperty and intent to close the transaction pursuant to the terms of this Agreement (the “Approval Notice”). Buyer’s failure to give the Approval Notice shall be deemed an election to terminate this Agreement. Upon Buyer’s election, delivery and performance or deemed election, to terminate this Agreement under this Section 3(b), this Agreement shall be deemed cancelled, the Deposit shall be released by Escrow Holder to Buyer immediately upon written demand by Buyer, after which neither party shall have any further obligations to the other under this Agreement, except those that are specifically stated to survive the termination of this Agreement. Buyer acknowledges that it is acquiring Concurrently with delivering the Business without any representation or warrantyApproval Notice, express or implied, by Seller or any of its Affiliates except as expressly set forth herein. In furtherance of the foregoing, and not in limitation thereofif at all, Buyer acknowledges that no representation or warranty, express or implied, of shall notify Seller or any of its advisors, including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives, with respect in writing whether Buyer desires to the Business, including, without limitation, (a) the information set forth in the Confidential Information Memorandum relating to the Business dated June 2002, (b) any other information provided to Buyer pursuant to the Confidentiality Agreement or Section 8.15 or (c) any financial projection or forecast delivered to Buyer with respect to the revenues or profitability which may arise from the operation of the Business either before or after the Closing Date, shall (except as otherwise expressly represented to in this Agreement) form the basis of any claim against Seller or any of its advisors including, without limitation, Wachovia Securities Inc., or any of their respective Affiliates or representatives with respect thereto or with respect to any related matter. With respect to any projection or forecast delivered by or on behalf of Seller to Buyer, Buyer acknowledges that (x) there are uncertainties inherent in attempting to make such projections and forecasts, (y) the accuracy and correctness of such projections and forecasts may be affected by information which may become available through discovery or otherwise after the date of such projections and forecasts and (z) it is familiar with each of the foregoing. Buyer has no knowledge of any facts and/or circumstances that would make assume any of the representations Bank Debt or pay off any of the Agency Debt. If Buyer delivers the Approval Notice but does not notify Seller in writing whether Buyer desires to assume any of the Bank Debt or pay off any of the Agency Debt, then Buyer shall be deemed to have elected to pay off all of the Bank Debt and warranties of Seller contained in Article V untrue or misleading. Nothing contained in this Section 6.09 will be construed as a waiver of a defense to claims for fraudthe Agency Debt.