No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
Sources: Limited Liability Company Operating Agreement (Affymetrix Inc)
No Other Representations. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE III, SELLER MAKES NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, RELATING TO THE FEDERALCOMPANY, STATE, LOCAL SELLER OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND ANY SUCH OTHER TAX (REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY IMPLIED REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSCONDITION, OTHER THAN MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE EXPRESS REPRESENTATIONSFOREGOING, EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE III, SELLER MAKES NO, AND SHALL NOT BE REFERRED DEEMED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDINGHAVE MADE ANY, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION WARRANTY TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF BUYER WITH RESPECT TO (A) ANY OTHER REPRESENTATIONSPROJECTIONS, ESTIMATES OR BUDGETS HERETOFORE DELIVERED TO OR MADE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES, COUNSEL, ACCOUNTANTS OR ADVISORS OF FUTURE REVENUES, EXPENSES OR EXPENDITURES OR FUTURE RESULTS OF OPERATIONS OF THE COMPANY OR (B) IN THE MATERIALS RELATING TO SELLER, THE MEMBER TAKING COMPANY MADE AVAILABLE TO BUYER OR IN ANY PRESENTATION OF THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS BUSINESS IN CONNECTION WITH OR AS A RESULT THE TRANSACTIONS CONTEMPLATED HEREBY, AND NO STATEMENT CONTAINED IN ANY OF SUCH ACTION MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE, IT BEING UNDERSTOOD THAT ANY PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING BUT NOT LIMITED TO, THE COMPANY CONFIDENTIAL OVERVIEWS MADE AVAILABLE BY SELLER AND ITS REPRESENTATIVES ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF SELLER, THE COMPANY, EXCEPT TO THE EXTENT SPECIFICALLY REFERENCED HEREIN OR (COLLECTIVELYC) ANY OTHER INFORMATION OR DOCUMENTS (FINANCIAL OR OTHERWISE) MADE AVAILABLE TO THE BUYER OR ANY OF ITS AFFILIATES, "COSTS")COUNSEL, ACCOUNTANTS OR ADVISORS WITH RESPECT TO THE COMPANY. BUYER HEREBY ACKNOWLEDGES AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWAGREES TO SUCH DISCLAIMER.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER OR ANY REPRESENTATION OF ITS AFFILIATES OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER TAX INFORMATION (INCLUDING PROPERTY TAX) CONSEQUENCES ANY FINANCIAL PROJECTIONS OR OTHER MATERIALS MADE AVAILABLE TO THE BUYER OR ANY PERSON OF ITS RESPECTIVE AFFILIATES OR REPRESENTATIVES IN CERTAIN “DATA ROOMS” OR MANAGEMENT PRESENTATIONS OR OTHERWISE), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE III, ARTICLE II, THE DISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT, NONE OF THE TRANSACTIONSCOMPANY OR ITS SUBSIDIARIES NOR ANY OTHER PERSON MAKES, ACTIONS AND EACH OF THE COMPANY, ITS SUBSIDIARIES OR EVENTS (INCLUDING ANY OTHER PERSON EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE ALLOCATION CONDITION AND VALUE OR QUALITY OF TAX ITEMS) THAT MAY ARISE OUT OF THE SHARES OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")COMPANY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT ARTICLE III, ARTICLE II, THE DISCLOSURE SCHEDULE OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS CONTRACT OR OTHER REPRESENTATIONS. CONSISTENT CERTIFICATE DELIVERED IN CONNECTION WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDINGTHE BUYER ACKNOWLEDGES THAT NONE OF THE COMPANY, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ITS SUBSIDIARIES NOR ANY OTHER PERSON ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY COMPANY OR ON BEHALF OF ANY MEMBER OR OTHER PERSON MAKES ANY OTHER PERSON EXPRESS OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC IMPLIED REPRESENTATION OR OTHER REPRESENTATIONS. IN WARRANTY WITH RESPECT TO THE EVENT ANY MEMBER (SELLER OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM COMPANY OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONSINFORMATION PROVIDED (INCLUDING THEIR RESPECTIVE ASSETS, LIABILITIES OR OPERATIONS), IF ANY, TO THE BUYER, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE BUYER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND EACH OF ITS AND THEIR RESPECTIVE REPRESENTATIVES, ACKNOWLEDGES THAT IT IS NOT RELYING NOR HAS IT RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES FROM THE COMPANY OR ANY OTHER PERSON EXCEPT FOR THOSE EXPRESSLY MADE IN THIS ARTICLE III, ARTICLE II, THE MEMBER TAKING DISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT AND THAT ONLY THOSE REPRESENTATIONS AND WARRANTIES MADE IN THIS ARTICLE III, ARTICLE II, DISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT SHALL HAVE ANY LEGAL EFFECT. NOTWITHSTANDING THE ACTION (ORFOREGOING OR ANYTHING HEREIN TO THE CONTRARY, NOTHING HEREIN SHALL RESTRICT OR OTHERWISE LIMIT THE PARTIES’ RIGHTS OR REMEDIES IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWFRAUD.
Appears in 1 contract
Sources: Stock Purchase Agreement (Telix Pharmaceuticals LTD)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS ARTICLE IV OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. BLOCKER I ACKNOWLEDGES THAT (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE III OR ANY OTHER TRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF THP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VI OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I SELLER NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (C) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE V, ARTICLE VII, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER II, BLOCKER II SELLER NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER II OR BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, AND (D) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VIII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BUYER, MERGER SUB NOR ANY OTHER PERSON ACTING ON BEHALF OF BUYER OR MERGER SUB MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NOTHING IN THIS SECTION 4.11 SHALL IN ANY WAY LIMIT ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESTRANSACTION DOCUMENTS, AND COSTS (II) THE PROVISIONS OF RESPONSE, NEGOTIATIONTHIS SECTION 4.11 SHALL NOT, AND DEFENSESHALL NOT BE DEEMED OR CONSTRUED TO, INCURRED BY THOSE MEMBERS IN CONNECTION WITH WAIVE, LIMIT OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND RELEASE ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLAIMS RELATING TO FRAUD.
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED 10.2.1 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO, AND THE PARTIES HEREBY AGREE, THAT NONE OF THE PARTIES OR CONTEMPLATED BY, THIS AGREEMENT ANY OF THEIR AFFILIATES OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON REPRESENTATIVES HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY INCLUDING AS TO THE CONDITION, MERCHANTABILITY, VALUE, QUALITY, USAGE, SUITABILITY OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPARTICULAR PURPOSE, OTHER THAN THE EXPRESS REPRESENTATIONSAPPARENT OR LATENT DEFECTS OF ANY TYPE, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR RISKS OR OTHER REPRESENTATIONS. CONSISTENT WITH INCIDENTS OF THE FOREGOING AND AS A MATERIAL INDUCEMENT TO BUSINESS, THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTPROJECT, EACH MEMBER (INCLUDINGTHE PROJECT SITE, WITHOUT LIMITATIONTHE PROJECT ASSETS, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER ASSUMED LIABILITIES OR ANY OTHER PERSON OR PART THEREOF, EXCEPT THOSE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III, ARTICLE IV AND ARTICLE IX, AS APPLICABLE TO SEEK DAMAGESA PARTY. IN PARTICULAR, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF AND WITHOUT IN ANY TAX REPRESENTATIONWAY LIMITING THE FOREGOING, ECONOMIC SELLER MAKES NO REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION WARRANTY TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF PURCHASER WITH RESPECT TO THE PROSPECTS, ANY OTHER REPRESENTATIONSFINANCIAL PROJECTIONS OR FORECASTS RELATING TO THE PURCHASED ASSETS; PROVIDED, THAT THIS SENTENCE SHALL NOT LIMIT THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN ARTICLE III AND ARTICLE IX.
10.2.2 EXCEPT FOR THOSE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III AND ARTICLE IX, THE MEMBER TAKING THE ACTION (ORPURCHASED ASSETS ARE BEING TRANSFERRED “AS IS, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBERWHERE IS, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBERWITH ALL FAULTS.”
10.2.3 Notwithstanding anything to the contrary contained in this Agreement, IMMEDIATELY UPON DEMANDand except in connection with the Seller’s Parent Guaranty, FOR ANY AND ALL LOSSESno Related Person of Seller will have any personal liability to Purchaser or any other Person as a result of this Agreement or the breach of any representation, COSTS AND EXPENSESwarranty, INCLUDINGcovenant, WITHOUT LIMITATIONagreement or obligation of Seller contained in this Agreement, LEGAL FEESand no Related Person of Purchaser will have any personal liability to Seller or any other Person as a result of this Agreement or the breach of any representation, ACCOUNTING FEESwarranty, CONSULTING FEEScovenant, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWagreement or obligation of Purchaser contained in this Agreement.
Appears in 1 contract
Sources: Build Transfer Agreement
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 4, THIS ARTICLE 5 (INCLUDING THE RELATED PORTIONS OF THE DISCLOSURE SCHEDULES) OR CONTAINED IN ANY OF THE ANCILLARY AGREEMENTS, NEITHER THE COMPANY, NOR SELLER, NOR THE SELLER REPRESENTATIVE NOR ANY OF THEIR FORMER, CURRENT AND FUTURE EQUITYHOLDERS, CONTROLLING PERSONS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, MEMBERS, MANAGERS, GENERAL OR LIMITED PARTNERS, OR ASSIGNEES (OR ANY FORMER, CURRENT OR FUTURE EQUITY HOLDER, CONTROLLING PERSON, DIRECTOR, OFFICER, EMPLOYEE, AGENT, REPRESENTATIVE, AFFILIATE, MEMBER, MANAGER, GENERAL OR LIMITED PARTNER, OR ASSIGNEE OF ANY OF THE FOREGOING) MAKES ANY, AND EACH DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY, REPRESENTATION OR WARRANTY, WHETHER STATUTORY, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITH RESPECT TO THE EQUITY INTERESTS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE), PROSPECTS OR BUSINESS OF THE COMPANY, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 4, THIS ARTICLE 5 (INCLUDING THE RELATED PORTIONS OF THE DISCLOSURE SCHEDULES) OR CONTAINED IN ANY OF THE ANCILLARY AGREEMENTS, AND BUYER EXPRESSLY PROVIDED ACKNOWLEDGES AS SUCH. EXCEPT AS SET FORTH IN ARTICLE 4, THIS ARTICLE 5 (INCLUDING THE RELATED PORTIONS OF THE DISCLOSURE SCHEDULES) OR CONTAINED IN ANY OF THE ANCILLARY AGREEMENTS, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. THE PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES TO EACH OTHER, EXCEPT AS CONTAINED IN THIS AGREEMENT, AND ANY AND ALL PRIOR REPRESENTATIONS AND WARRANTIES MADE BY ANY PARTY OR ITS REPRESENTATIVES, WHETHER VERBALLY OR IN WRITING, ARE DEEMED TO HAVE BEEN MERGED INTO THIS AGREEMENT, IT BEING INTENDED THAT NO SUCH PRIOR REPRESENTATIONS OR WARRANTIES SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT. BUYER ACKNOWLEDGES THAT ANY ESTIMATES, FORECASTS, OR PROJECTIONS FURNISHED OR MADE AVAILABLE TO IT CONCERNING THE COMPANIES (INCLUDING THOSE REFLECTED IN THE FINANCIAL STATEMENTS) OR THEIR PROPERTIES, BUSINESS OR ASSETS REFLECT NUMEROUS ASSUMPTIONS, ARE SUBJECT TO MATERIAL RISKS AND UNCERTAINTIES AND ARE NOT BEING AND WILL NOT BE RELIED UPON BY BUYER, IN EACH CASE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYIN THE ANCILLARY AGREEMENTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 5.28, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS PROVISIONS OF THIS SECTION 5.28 WILL IN NO WAY LIMIT THE BUYER’S ABILITY TO BRING A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) LIABILITY CLAIM AGAINST ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWACTUAL FRAUD.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Safe & Green Development Corp)
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN THIS AGREEMENT OR IN ANY ANCILLARY AGREEMENT, THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY UNITHOLDERS IN THE JOINDER AGREEMENT AND THE LETTER OF TRANSMITTAL AND THE REPRESENTATIONS AND WARRANTIES MADE BY THE OPTIONHOLDERS IN THE OPTION TERMINATION AGREEMENTS, NONE OF THE COMPANY, NOR ANY AFFILIATE OF THE COMPANY NOR ANY OTHER PERSON HAS MADE OR IS MAKING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO COMPANY, THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON BUSINESS OF THE TRANSACTIONS, ACTIONS COMPANY OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, OR ANY OF THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN ANCILLARY AGREEMENTS AND BUYER ACKNOWLEDGES THAT THE COMPANY (COLLECTIVELYHEREBY EXPRESSLY DISCLAIMS ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES, WHETHER IMPLIED OR MADE BY THE "ECONOMIC REPRESENTATIONS")COMPANY OR ANY OF ITS OFFICERS, MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY THE COMPANY IN THIS AGREEMENT OR CONTEMPLATED BYIN ANY ANCILLARY AGREEMENT, THIS THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY UNITHOLDERS IN THE JOINDER AGREEMENT OR AND THE ASSET PURCHASE AGREEMENT LETTER OF TRANSMITTAL AND THE REPRESENTATIONS AND WARRANTIES MADE BY THE OPTIONHOLDERS IN THE OPTION TERMINATION AGREEMENTS, (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING I) BUYER ACKNOWLEDGES THAT THE COMPANY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONSPROJECTION, FORECAST OR INFORMATION MADE AVAILABLE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO BUYER OR ANY AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE MEMBER TAKING THE ACTION (ORBUYER OR ANY AFFILIATES OR REPRESENTATIVES BY ANY MANAGER, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, SUCH MEMBER) SHALL REIMBURSE PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF THE OTHER MEMBERS AND THE TRANSFEREES COMPANY OR ANY OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"ITS AFFILIATES), AND (II) THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE BUSINESS OF THE COMPANY IN THE FUTURE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE FOREGOING SHALL NOT LIMIT THE RIGHT OF ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWPARTY TO SEEK ANY AVAILABLE REMEDY FOR FRAUD.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (Ia) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR ARTICLE V (AS MODIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"SCHEDULES HERETO), NO NEITHER THE COMPANY NOR ANY OTHER PERSON IS MAKING MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS WITH RESPECT TO THE COMPANY, ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE TO THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANY OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB OR THEIR AFFILIATES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE COMPANY OR ANY OF ITS AFFILIATES). IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY MAKES NO, AND HAS NOT MADE ANY, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSFINANCIAL PROJECTION OR FORECAST DELIVERED TO PARENT WITH RESPECT TO THE PERFORMANCE OF THE COMPANY EITHER BEFORE OR AFTER THE CLOSING DATE. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY MAKES NO, OTHER THAN THE EXPRESS REPRESENTATIONSAND HAS NOT MADE ANY, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH WARRANTIES TO PARENT OR MERGER SUB REGARDING THE FOREGOING PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY.
(b) THE COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VI (AS A MATERIAL INDUCEMENT TO MODIFIED BY THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTSCHEDULES HERETO), EACH MEMBER (INCLUDINGNONE OF PARENT, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER MERGER SUB OR ANY OTHER PERSON MAKES, OR TO SEEK DAMAGESHAS MADE, A RIGHT OF OFFSET ANY OTHER EXPRESS OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC IMPLIED REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WARRANTY WITH RESPECT TO PARENT OR MERGER SUB, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREE TO PARENT’S AND MERGER SUB’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONSREPRESENTATIONS OR WARRANTIES, THE MEMBER TAKING THE ACTION (ORWHETHER MADE BY PARENT, IN THE EVENT MERGER SUB OR ANY OF ACTION TAKEN BY A TRANSFEREE THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS ALL LIABILITY AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, RESPONSIBILITY FOR ANY AND ALL LOSSESREPRESENTATION, COSTS AND EXPENSESWARRANTY, INCLUDINGPROJECTION, WITHOUT LIMITATIONFORECAST, LEGAL FEESSTATEMENT, ACCOUNTING FEESOR INFORMATION MADE, CONSULTING FEESCOMMUNICATED, AND COSTS OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE COMPANY OR ITS AFFILIATES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF RESPONSEPARENT, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH MERGER SUB OR AS A RESULT ANY OF SUCH ACTION (COLLECTIVELY, "COSTS"THEIR AFFILIATES), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV (INCLUDING IN THE DISCLOSURE SCHEDULE), ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF SELLER OR ANY OTHER PERSON MAKES, AND SELLER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS OR PURCHASED ASSETS THAT HAVE BEEN MADE AVAILABLE TO BUYER OR ANY OF BUYER’S REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS BY THE MANAGEMENT OF SELLER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY BUYER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE IV (INCLUDING IN THE DISCLOSURE SCHEDULE), THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY SELLER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF SELLER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY BUYER OR AFFILIATE OF BUYER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 4.30 SHALL RESTRICT OR PROHIBIT ANY CLAIM ARISING OUT OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANYFRAUD (AS DEFINED HEREIN) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWSET FORTH HEREIN.
Appears in 1 contract
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS Section 2.1 (AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULES AND THE COMPANY SEC DOCUMENTS), NEITHER THE COMPANY NOR ANY OTHER PERSON HAS MADE MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO THE FEDERAL, STATE, LOCAL COMPANY OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON SUBSIDIARIES OF THE TRANSACTIONSCOMPANY OR THEIR RESPECTIVE OPERATIONS, ACTIONS ASSETS, LIABILITIES, CONDITION (FINANCIAL OR EVENTS (INCLUDING OTHERWISE) OR PROSPECTS, THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF BUSINESS, THE COMMON STOCK, THE AWARDS OR BE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE OTHER TRANSACTION DOCUMENTS, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN AND THE COMPANY (COLLECTIVELYHEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED OR MADE BY THE "ECONOMIC REPRESENTATIONS")COMPANY OR ANY OTHER PERSON. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY THE COMPANY IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR Section 2.1 (AS QUALIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"COMPANY DISCLOSURE SCHEDULES AND THE COMPANY SEC DOCUMENTS), NO PERSON IS MAKING THE COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT OR WARRANTY AS INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY, IN WRITING, ELECTRONICALLY OR OTHERWISE) TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPARENT, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER MERGERSUB OR ANY OTHER PERSON (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO SEEK DAMAGESPARENT, A RIGHT OF OFFSET MERGERSUB OR ANY OTHER RELIEF BASED UPON AN ALLEGED BREACH PERSON). THE COMPANY MAKES NO REPRESENTATIONS OR INACCURACY OF WARRANTIES TO PARENT, MERGERSUB OR ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OTHER PERSON REGARDING THE PROBABLE SUCCESS OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, PROFITABILITY OF THE MEMBER BUSINESS. NOTWITHSTANDING ANYTHING CONTAINED IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION THIS AGREEMENT (OR, INCLUDING IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"THIS Section 2.1), AND NOTHING HEREIN SHALL LIMIT IN ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWWAY CLAIMS OR REMEDIES FOR FRAUD OR INTENTIONAL MISREPRESENTATION.
Appears in 1 contract
Sources: Merger Agreement (SharpSpring, Inc.)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS ARTICLE VI OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I SELLER NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. BLOCKER I SELLER ACKNOWLEDGES THAT (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE III OR ANY OTHER TRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF THP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV, ARTICLE VI, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I, BLOCKER I SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I OR BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (C) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER II SELLER NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, AND (D) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VIII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BUYER, MERGER SUB NOR ANY OTHER PERSON ACTING ON BEHALF OF BUYER OR MERGER SUB MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NOTHING IN THIS SECTION 6.07 SHALL IN ANY WAY LIMIT ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESTRANSACTION DOCUMENTS, AND COSTS (II) THE PROVISIONS OF RESPONSE, NEGOTIATIONTHIS SECTION 6.07 SHALL NOT, AND DEFENSESHALL NOT BE DEEMED OR CONSTRUED TO, INCURRED BY THOSE MEMBERS IN CONNECTION WITH WAIVE, LIMIT OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND RELEASE ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLAIMS RELATING TO FRAUD.
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE III, AND IN ARTICLE IV (AS MODIFIED OR SUPPLEMENTED BY THE DISCLOSURE SCHEDULE), NONE OF SUCH SELLER, THE OTHER SELLERS, THE COMPANY, THEIR AFFILIATES OR ANY OTHER PERSON MAKES OR HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, RELATING TO THE FEDERALCOMPANY OR ANY OF ITS SUBSIDIARIES, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYSUCH SELLER, THE "TAX REPRESENTATIONS") OTHER SELLERS OR (II) OTHERWISE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND ANY PROJECTIONSSUCH OTHER REPRESENTATIONS OR WARRANTIES, CASH FLOWSWHETHER MADE BY SUCH SELLER, POTENTIAL PROFITTHE OTHER SELLERS, THE COMPANY, OR YIELDS FROMANY OF THEIR AFFILIATES, PERFORMANCE OF OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONSULTANTS OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELYREPRESENTATIVES, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING DISCLAIMED INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY AS TO CONDITION, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER AND ITS AFFILIATES ARE NOT RELYING ON ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES. WITHOUT LIMITING THE FOREGOING, SUCH SELLER MAKES NO, AND SHALL NOT BE DEEMED TO HAVE MADE ANY, REPRESENTATION OR WARRANTY TO BUYER WITH RESPECT TO (A) ANY PROJECTIONS, ESTIMATES OR BUDGETS HERETOFORE DELIVERED TO OR MADE AVAILABLE TO BUYER OR ANY OF ITS AFFILIATES, COUNSEL, ACCOUNTANTS OR ADVISORS OF FUTURE REVENUES, EXPENSES OR EXPENDITURES OR FUTURE RESULTS OF OPERATIONS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES OR (B) IN THE MATERIALS RELATING TO SUCH SELLER, THE COMPANY OR ANY OF ITS SUBSIDIARIES MADE AVAILABLE TO BUYER OR IN ANY PRESENTATION OF THE BUSINESS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY, AND NO STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY HEREUNDER OR OTHERWISE, IT BEING UNDERSTOOD THAT ANY PROJECTIONS OR OTHER PREDICTIONS, ANY DATA, ANY FINANCIAL INFORMATION OR ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING BUT NOT LIMITED TO, THE SELLERS’, THE COMPANY’S OR ANY OF ITS SUBSIDIARIES’ CONFIDENTIAL OVERVIEWS MADE AVAILABLE BY SUCH SELLER AND ITS REPRESENTATIVES ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF SUCH SELLER, THE COMPANY OR ANY OF ITS SUBSIDIARIES, EXCEPT TO THE EXTENT SPECIFICALLY REFERENCED HEREIN OR (C) ANY OTHER MATTER INFORMATION OR DOCUMENTS (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBERFINANCIAL OR OTHERWISE) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT AVAILABLE TO THE OTHER MEMBERS BUYER OR ANY OF ITS AFFILIATES, COUNSEL, ACCOUNTANTS OR ADVISORS WITH RESPECT TO ENTER INTO THE COMPANY AND ITS SUBSIDIARIES. BUYER HEREBY ACKNOWLEDGES AND AGREES TO SUCH DISCLAIMER AND THAT, EXCEPT TO THE EXTENT SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH MEMBER (INCLUDINGBUYER IS PURCHASING THE COMPANY AND ITS SUBSIDIARIES ON AN “AS IS, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESWHERE IS” BASIS, AND COSTS OF RESPONSE, NEGOTIATION, IS ONLY ENTITLED TO RELY UPON THE REPRESENTATIONS AND DEFENSE, INCURRED BY THOSE MEMBERS WARRANTIES IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHIS AGREEMENT.
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No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV, ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF BUYER OR ANY OTHER PERSON MAKES, AND BUYER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS THAT HAVE BEEN MADE AVAILABLE TO SELLER OR ANY OF SELLER’S REPRESENTATIVES OR IN ANY PRESENTATION OF ANY BUSINESS BY THE MANAGEMENT OF BUYER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY SELLER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE IV, THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY BUYER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF BUYER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY SELLER OR AFFILIATE OF SELLER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM TRANSACTIONS CONTEMPLATED HEREBY OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHEREBY.
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No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS SECTION 3.1 (AS QUALIFIED BY THE COMPANY DISCLOSURE SCHEDULES AND THE COMPANY SEC DOCUMENTS), NEITHER THE COMPANY NOR ANY OTHER PERSON HAS MADE MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO THE FEDERAL, STATE, LOCAL COMPANY OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON SUBSIDIARIES OF THE TRANSACTIONSCOMPANY OR THEIR RESPECTIVE OPERATIONS, ACTIONS ASSETS, LIABILITIES, CONDITION (FINANCIAL OR EVENTS (INCLUDING OTHERWISE) OR PROSPECTS, THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF BUSINESS, THE COMMON STOCK, THE OPTIONS, THE WARRANTS OR BE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE OTHER TRANSACTION DOCUMENTS, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN AND THE COMPANY (COLLECTIVELYHEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED OR MADE BY THE "ECONOMIC REPRESENTATIONS")COMPANY OR ANY OTHER PERSON. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY THE COMPANY IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR SECTION 3.1 (AS QUALIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"COMPANY DISCLOSURE SCHEDULES AND THE COMPANY SEC DOCUMENTS), NO PERSON IS MAKING THE COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT OR WARRANTY AS INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY, IN WRITING, ELECTRONICALLY OR OTHERWISE) TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPARENT, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER MERGERSUB OR ANY OTHER PERSON (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO SEEK DAMAGESPARENT, A RIGHT OF OFFSET MERGERSUB OR ANY OTHER RELIEF BASED UPON AN ALLEGED BREACH PERSON). THE COMPANY MAKES NO REPRESENTATIONS OR INACCURACY OF WARRANTIES TO PARENT, MERGERSUB OR ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OTHER PERSON REGARDING THE PROBABLE SUCCESS OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, PROFITABILITY OF THE MEMBER BUSINESS. NOTWITHSTANDING ANYTHING CONTAINED IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION THIS AGREEMENT (OR, INCLUDING IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"THIS SECTION 3.1), AND NOTHING HEREIN SHALL LIMIT IN ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWWAY CLAIMS OR REMEDIES FOR FRAUD OR INTENTIONAL MISREPRESENTATION.
Appears in 1 contract
No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III (INCLUDING IN THE DISCLOSURE SCHEDULE), ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF SELLER OR ANY OTHER PERSON MAKES, AND SELLER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO ANY BUSINESS AND AFFAIRS THAT HAVE BEEN MADE AVAILABLE TO BUYER OR ANY OF BUYER’S REPRESENTATIVES OR IN ANY PRESENTATION OF ANY BUSINESS BY THE MANAGEMENT OF SELLER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY BUYER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE III (INCLUDING IN THE DISCLOSURE SCHEDULE), THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY SELLER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF SELLER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY BUYER OR AFFILIATE OF BUYER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 3.24 SHALL RESTRICT OR PROHIBIT ANY CLAIM ARISING OUT OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANYFRAUD (AS DEFINED HEREIN) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWSET FORTH HEREIN.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) PURCHASER ACKNOWLEDGES AND AGREES THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT ARTICLE II, NEITHER PARENT NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO PARENT, EMC OR ANY OF THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY, BY THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT MERGER AGREEMENT. THE PURCHASER ACKNOWLEDGES AND AGREES THAT THE ACCURACY OF PARENT’S REPRESENTATIONS AND WARRANTIES IS NOT A CONDITION TO PURCHASER’S OBLIGATION TO COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY OTHER THAN SOLELY WITH RESPECT TO THE REPRESENTATIONS SET FORTH IN SECTION 2.1(a) AND SECTION 2.3 AS PROVIDED IN SECTION 5.2.(a). THE PURCHASER ACKNOWLEDGES AND AGREES TO PARENT’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY PARENT OR ANY OF ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE EQUITYHOLDERS, CONTROLLING PERSONS, AFFILIATES, GENERAL OR LIMITED PARTNERS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (COLLECTIVELYORALLY OR IN WRITING) TO THE PURCHASER OR ITS EQUITYHOLDERS, "CONTROLLING PERSONS, AFFILIATES, GENERAL OR LIMITED PARTNERS OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE PURCHASER OR ITS EQUITYHOLDERS, CONTROLLING PERSONS, AFFILIATES, GENERAL OR LIMITED PARTNERS OR REPRESENTATIVES BY ANY REPRESENTATIVE OF PARENT OR ANY OF ITS AFFILIATES). THE PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS AND BUSINESS OF PARENT AND ITS SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE PURCHASER HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, THE PURCHASER ACKNOWLEDGES AND AGREES THAT PARENT DOES NOT MAKE, NOR HAS MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS REPRESENTATIONS"OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO THE PURCHASER OR ITS EQUITYHOLDERS, CONTROLLING PERSONS, AFFILIATES, GENERAL OR LIMITED PARTNERS OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF PARENT, EMC OR THEIR RESPECTIVE SUBSIDIARIES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. THE PURCHASER ACKNOWLEDGES AND AGREES THAT PARENT DOES NOT MAKE, NOR HAS MADE (OR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS BEHALF), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTPURCHASER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF PARENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF EMC OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHEIR RESPECTIVE SUBSIDIARIES.
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Dell Technologies Inc)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO, AND THE PARTIES HEREBY AGREE, THAT NONE OF THE PARTIES OR CONTEMPLATED BY, THIS AGREEMENT ANY OF THEIR AFFILIATES OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON REPRESENTATIVES HAS MADE OR IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY IMPLIED REPRESENTATION OR WARRANTY INCLUDING AS TO THE CONDITION, MERCHANTABILITY, VALUE, QUALITY, USAGE, SUITABILITY OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPARTICULAR PURPOSE, OTHER THAN THE EXPRESS REPRESENTATIONSAPPARENT OR LATENT DEFECTS OF ANY TYPE, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR RISKS OR OTHER REPRESENTATIONS. CONSISTENT WITH INCIDENTS OF THE FOREGOING AND AS A MATERIAL INDUCEMENT TO BUSINESS, THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTPROJECT, EACH MEMBER (INCLUDINGTHE PROJECT SITE, WITHOUT LIMITATIONTHE PROJECT ASSETS, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER ASSUMED LIABILITIES OR ANY OTHER PERSON OR PART THEREOF, EXCEPT THOSE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III, ARTICLE IV AND ARTICLE IX, AS APPLICABLE TO SEEK DAMAGESA PARTY. IN PARTICULAR, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF AND WITHOUT IN ANY TAX REPRESENTATIONWAY LIMITING THE FOREGOING, ECONOMIC SELLER MAKES NO REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION WARRANTY TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF PURCHASER WITH RESPECT TO THE PROSPECTS, ANY OTHER REPRESENTATIONSFINANCIAL PROJECTIONS OR FORECASTS RELATING TO THE PURCHASED ASSETS; PROVIDED, THAT THIS SENTENCE SHALL NOT LIMIT THE MEMBER TAKING THE ACTION (OR, EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS ARTICLE III AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWARTICLE IX.
Appears in 1 contract
Sources: Build Transfer Agreement
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS ARTICLE VIII, NONE OF BUYER, MERGER SUB NOR ANY OTHER PERSON ACTING ON BEHALF OF BUYER OR MERGER SUB MAKES ANY REPRESENTATION OR WARRANTY TO THE TARGET COMPANIES OR THE SELLERS, EXPRESS OR IMPLIED. BUYER AND MERGER SUB EACH ACKNOWLEDGES THAT (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE III, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF THP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV AND ARTICLE V, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I, BLOCKER II, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I OR BLOCKER II MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, AND (C) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VI AND ARTICLE VII, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I SELLER, BLOCKER II SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I SELLER OR BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NOTHING IN THIS SECTION 8.10 SHALL IN ANY WAY LIMIT ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESTRANSACTION DOCUMENTS, AND COSTS (II) THE PROVISIONS OF RESPONSE, NEGOTIATIONTHIS SECTION 8.10 SHALL NOT, AND DEFENSESHALL NOT BE DEEMED OR CONSTRUED TO, INCURRED BY THOSE MEMBERS IN CONNECTION WITH WAIVE, LIMIT OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND RELEASE ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLAIMS RELATING TO FRAUD.
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) NOTWITHSTANDING ANYTHING HEREIN TO THE FEDERALCONTRARY, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON IT IS THE EXPLICIT INTENT OF THE TRANSACTIONSPARTIES HERETO THAT NEITHER THE COMPANY, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION ANY OF TAX ITEMS) THAT MAY ARISE OUT ITS SUBSIDIARIES NOR ANY OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON THEIR RESPECTIVE AFFILIATES IS MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY GIVEN IN THIS ARTICLE IV, ANY RELATED DOCUMENT OR IN THE CERTIFICATE DELIVERED BY THE COMPANY PURSUANT TO SECTION 8.2(c) AND, EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE IV, ANY RELATED DOCUMENT OR IN THE CERTIFICATE DELIVERED BY THE COMPANY PURSUANT TO ANY OTHER MATTER (SECTION 8.2(c), IT IS UNDERSTOOD THAT PARENT AND MERGER SUB TAKE THE BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES, AS IS AND WHERE IS WITH ALL SUCH REPRESENTATIONS, OTHER THAN FAULTS AS OF THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT CLOSING AND WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HEDEFECTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE IV, SHE OR IT MAY HAVE AT ANY TIME, NOW RELATED DOCUMENT OR IN THE FUTURECERTIFICATE DELIVERED BY THE COMPANY PURSUANT TO SECTION 8.2(c), TO ASSERT A CLAIM IT IS UNDERSTOOD THAT ANY TAX REPRESENTATIONSESTIMATES, ECONOMIC REPRESENTATIONS FORECASTS, PROJECTIONS OR OTHER REPRESENTATIONS PREDICTIONS AND ANY OTHER INFORMATION OR MATERIALS THAT HAVE BEEN OR SHALL HEREAFTER BE PROVIDED OR MADE BY OR ON BEHALF OF ANY MEMBER AVAILABLE TO PARENT OR ANY OTHER PERSON OF ITS AFFILIATES OR TO SEEK DAMAGESANY OF THEIR RESPECTIVE REPRESENTATIVES (INCLUDING IN ANY CONFIDENTIAL INFORMATION MEMORANDUM OR SIMILAR DOCUMENT, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. DOCUMENTS IN THE EVENT DATA ROOM, OR ANY MEMBER (PRESENTATION BY THE COMPANY OR THE TRANSFEREE ANY OF ITS AFFILIATES OR ANY INTEREST, INCLUDING UNITS, OF THEIR RESPECTIVE REPRESENTATIVES OR MANAGEMENT OF THE MEMBER IN THE COMPANYCOMPANY OR OTHERWISE) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESARE NOT, AND COSTS SHALL NOT BE DEEMED TO BE, REPRESENTATIONS AND WARRANTIES OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH THE COMPANY OR AS A RESULT ANY OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ITS SUBSIDIARIES OR AFFILIATES OR ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHEIR RESPECTIVE REPRESENTATIVES.
Appears in 1 contract
Sources: Merger Agreement (Vroom, Inc.)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON EACH OF THE TRANSACTIONSCOMPANY, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULES) AND ARTICLE V (AS MODIFIED BY THE PARENT DISCLOSURE SCHEDULES), NEITHER THE COMPANY, PARENT, MERGER SUB NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY, PARENT MERGER SUB OR THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE COMPANY ON ONE HAND AND PARENT AND MERGER SUB ON THE OTHER HAND SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE OTHER PARTIES’ EXPRESS DISAVOWAL AND DISCLAIMER OF ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANY, PARENT, MERGER SUB OR ANY OF THEIR AFFILIATES, OR THEIR RESPECTIVE PARTNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY SUCH OTHER REPRESENTATION OR WARRANTY OR ANY PROJECTION, FORECAST, STATEMENT, OR INFORMATION OTHERWISE MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY OF THE COMPANY, PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES (INCLUDING ANY SUCH OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED IN TO ANY OF THE COMPANY, PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY PARTNER, MEMBER, DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF ANY PARTY TO THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT ANY OF THEIR RESPECTIVE AFFILIATES OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"REPRESENTATIVES). EACH MEMBER (INCLUDINGOF THE COMPANY, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) PARENT AND MERGER SUB ACKNOWLEDGES THAT NO PERSON IT HAS MADE ANY TAX REPRESENTATIONSCONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT OPERATIONS AND BUSINESS OF THE COMPANY, PARENT, MERGER SUB AND THEIR SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EACH MEMBER OF THE COMPANY, PARENT AND MERGER SUB HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (INCLUDINGAS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULES) AND ARTICLE V (AS MODIFIED BY THE PARENT DISCLOSURE SCHEDULES), WITHOUT LIMITATIONAS APPLICABLE, AND EACH OF THE COMPANY, PARENT AND MERGER SUB HAS NOT RELIED ON ANY INFORMATION NOT CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULES) AND ARTICLE V (AS MODIFIED BY THE PARENT DISCLOSURE SCHEDULES). IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EACH SUBSTITUTED MEMBER AS A CONDITION OF THE COMPANY, PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES THAT, (X) EACH PARTY TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELFTHIS AGREEMENT DOES NOT MAKE, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) NOR HAS MADE, ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (WARRANTY, EXPRESS OR THE TRANSFEREE OF ANY INTERESTIMPLIED, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO ANY OF THE COMPANY, PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE COMPANY, PARENT, MERGER SUB OR THEIR SUBSIDIARIES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE, AND (Y) EACH PARTY TO THIS AGREEMENT DOES NOT MAKE, NOR HAS MADE (NOR HAS AUTHORIZED ANY OTHER REPRESENTATIONSPERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATIONS OR WARRANTIES TO ANY OTHER PARTY TO THIS AGREEMENT REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF PARENT, MERGER SUB, THE MEMBER TAKING COMPANY OR THEIR SUBSIDIARIES. PARENT AND MERGER SUB SHALL ACQUIRE THE ACTION COMPANY AND ITS SUBSIDIARIES (ORI) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY, THE COMPANY’S SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMANDEACH CASE, FOR ANY THE REPRESENTATIONS AND ALL LOSSESWARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULES AND SUBJECT TO ARTICLE IX HEREOF). NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, COSTS IN NO EVENT SHALL THIS SECTION 9.9 BE DEEMED TO LIMIT THE RIGHT TO BRING A CLAIM IN RESPECT OF ACTUAL OR INTENTIONAL FRAUD SOLELY WITH RESPECT TO THE REPRESENTATIONS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, WARRANTIES SET FORTH IN ARTICLE IV AND COSTS ARTICLE V OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHIS AGREEMENT.
Appears in 1 contract
No Other Representations. NO BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND ARTICLE V, NEITHER SELLER, THE COMPANY NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY OR ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES TO SELLER’S AND THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND ARTICLE V, WHETHER MADE BY SELLER, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE PARTNERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, ACCOUNTANTS, LEGAL COUNSEL OR OTHER REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY OF BUYER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER, OR ITS AFFILIATES OR REPRESENTATIVES BY ANY PARTNER, MEMBER, DIRECTOR, MANAGER, OFFICER, EMPLOYEE, ACCOUNTANT, LEGAL COUNSEL OR OTHER REPRESENTATIVE OF SELLER, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES). SELLER AND THE COMPANY SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VI NEITHER BUYER NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO BUYER OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. BUYER ACKNOWLEDGES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS AND BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND ARTICLE V, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NEITHER SELLER NOR THE COMPANY MAKES, NOR HAS MADE, ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALWARRANTY, STATEEXPRESS OR IMPLIED, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES WITH RESPECT TO ANY PERSON FINANCIAL PROJECTION OR FORECAST DELIVERED TO BUYER OR ITS AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE TRANSACTIONSCOMPANY OR ITS SUBSIDIARIES OR AFFILIATES WHETHER BEFORE, ACTIONS ON OR EVENTS (INCLUDING AFTER THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")CLOSING DATE. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND ARTICLE V, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF SELLER NOR THE COMPANY HAS MADE (NOR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"THEIR BEHALF), NO PERSON IS MAKING ANY REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY OR ITS SUBSIDIARIES. BUYER SHALL ACQUIRE THE COMPANY AND ITS SUBSIDIARIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY OTHER MATTER PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY, ITS SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN II) IN AN “AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A IS” CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HEA “WHERE IS” BASIS, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OREXCEPT, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMANDEACH CASE, FOR ANY THE REPRESENTATIONS AND ALL LOSSESWARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE) AND ARTICLE V, COSTS AND EXPENSESIN EACH CASE, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWSUBJECT TO SECTION 10.2 HEREOF.
Appears in 1 contract
Sources: Stock Purchase Agreement (Envision Healthcare Corp)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS ARTICLE III OR ANY OTHER TRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF THP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. THP ACKNOWLEDGES THAT, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV, ARTICLE V, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I, BLOCKER I SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I OR BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED ARTICLE VI, ARTICLE VII, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER II, BLOCKER II SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER II OR BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, AND (C) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VIII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BUYER, MERGER SUB NOR ANY OTHER PERSON ACTING ON BEHALF OF BUYER OR MERGER SUB MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NOTHING IN THIS SECTION 3.27 SHALL IN ANY WAY LIMIT ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESTRANSACTION DOCUMENTS, AND COSTS (II) THE PROVISIONS OF RESPONSE, NEGOTIATIONTHIS SECTION 3.27 SHALL NOT, AND DEFENSESHALL NOT BE DEEMED OR CONSTRUED TO, INCURRED BY THOSE MEMBERS IN CONNECTION WITH WAIVE, LIMIT OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND RELEASE ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLAIMS RELATING TO FRAUD.
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (A) THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY EXPRESSLY SET FORTH IN ARTICLE 3 HEREOF ARE AND SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE WITH RESPECT TO THE ACQUIRED COMPANIES TO BUYER AND MERGERSUB IN CONNECTION WITH THIS AGREEMENT OR THE CONTEMPLATED TRANSACTIONS, AND (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES REFERRED TO IN CLAUSE (A) ABOVE, NEITHER THE COMPANY, ITS SUBSIDIARIES, THE SELLERS, THE SELLERS’ REPRESENTATIVE NOR ANY OTHER PERSON HAS MADE OR IS MAKING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, STATUTORY OR OTHERWISE, OF ANY NATURE, INCLUDING WITH RESPECT TO ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) AS TO THE FEDERALMERCHANTABILITY, STATEQUALITY, LOCAL QUANTITY, SUITABILITY OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO FITNESS FOR ANY PERSON PARTICULAR PURPOSE OF THE TRANSACTIONSBUSINESS OR THE ASSETS OF THE ACQUIRED COMPANIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT ARTICLE 3 HEREOF, ALL OTHER WARRANTIES, EXPRESS OR CONTEMPLATED BYIMPLIED, THIS AGREEMENT STATUTORY OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYOTHERWISE, "OF ANY NATURE, INCLUDING WITH RESPECT TO ANY EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY OR IMPLIED REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, QUALITY, QUANTITY, SUITABILITY OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPARTICULAR PURPOSE OF THE BUSINESS OR THE ASSETS OF THE ACQUIRED COMPANIES, OTHER THAN THE EXPRESS REPRESENTATIONSARE HEREBY EXPRESSLY DISCLAIMED. BUYER AND MERGERSUB HEREBY REPRESENT, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDINGWARRANT, WITHOUT LIMITATIONCOVENANT AND AGREE, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES ON BEHALF OF THEMSELVES AND THEIR RESPECTIVE AFFILIATES, AND ANY PERSON CLAIMING BY, THROUGH OR ON BEHALF OF ANY OF THEM, THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS IN DETERMINING TO ENTER INTO AND CONSUMMATE THIS AGREEMENTAGREEMENT AND THE CONTEMPLATED TRANSACTIONS, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF THEY ARE NOT RELYING UPON ANY REPRESENTATION OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE WARRANTY MADE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN PURPORTEDLY MADE BY OR ON BEHALF OF ANY MEMBER OR PERSON, OTHER THAN THOSE EXPRESSLY MADE BY THE COMPANY AS SET FORTH IN ARTICLE 3 HEREOF, AND THAT, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY AS SET FORTH IN ARTICLE 3 HEREOF, BUYER AND MERGERSUB SHALL ACQUIRE THE COMPANY AND ITS SUBSIDIARIES AND THEIR RESPECTIVE ASSETS WITHOUT ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (ORPARTICULAR PURPOSE, IN THE EVENT OF ACTION TAKEN BY AN “AS IS” CONDITION AND ON A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS “WHERE IS” BASIS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND “WITH ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWFAULTS.”
Appears in 1 contract
Sources: Merger Agreement (Greif Inc)
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN THIS ARTICLE II (AS MODIFIED BY THE COMPANY SCHEDULE), NEITHER THE COMPANY, ANY SUBSIDIARIES OF THE COMPANY, THE REPRESENTATIVE, ANY SELLER, ANY AFFILIATE OF ANY SELLER OR THE COMPANY NOR ANY OTHER PERSON HAS MADE MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO THE FEDERALCOMPANY, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON SUBSIDIARIES OF THE TRANSACTIONSCOMPANY, ACTIONS THE REPRESENTATIVE, ANY SELLER, THE COMPANY COMMON STOCK, THE BUSINESS OF THE COMPANY AND ITS SUBSIDAIRIES OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE OTHER TRANSACTION DOCUMENTS, AND THE COMPANY AND THE SELLER HEREBY EXPRESSLY DISCLAIM ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER IMPLIED OR MADE BY THE COMPANY, ANY SUBSIDIARIES OF THE COMPANY, THE "TAX REPRESENTATIONS") OR (II) REPRESENTATIVE, ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFITSELLER, OR YIELDS FROMANY OF THEIR RESPECTIVE OFFICERS, PERFORMANCE OF MANAGERS, DIRECTORS, STOCKHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY THE COMPANY IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR ARTICLE II (AS MODIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"COMPANY SCHEDULE), NO PERSON IS MAKING THE COMPANY AND THE SELLERS HEREBY EXPRESSLY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT OR WARRANTY AS INFORMATION MADE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR ANY OTHER MATTER OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES (ALL SUCH REPRESENTATIONSINCLUDING ANY OPINION, OTHER THAN INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY MANAGER, OFFICER, DIRECTOR, STOCKHOLDER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF THE EXPRESS REPRESENTATIONSCOMPANY OR ANY OF THE SELLERS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"OR ANY OF THEIR RESPECTIVE AFFILIATES). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT THE COMPANY AND THE SELLERS MAKE NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH WARRANTIES TO PARENT OR MERGER SUB REGARDING THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF PROBABLE SUCCESS OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, PROFITABILITY OF THE MEMBER IN BUSINESS OF THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS COMPANY AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWITS SUBSIDIARIES.
Appears in 1 contract
No Other Representations. NO EACH OF THE PARENT PARTIES SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE PARTNERSHIP DISCLOSURE SCHEDULE) AND ARTICLE V, NEITHER SELLER, THE PARTNERSHIP NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE GENERAL PARTNER OR THE PARTNERSHIP OR THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARENT PARTIES SPECIFICALLY ACKNOWLEDGES AND AGREES TO SELLER’S AND THE PARTNERSHIP’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY SELLER, THE GENERAL PARTNER, THE PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE PARTNERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, ACCOUNTANTS, LEGAL COUNSEL OR OTHER REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY OF THE PARENT PARTIES OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO ANY OF THE PARENT PARTIES OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY PARTNER, MEMBER, DIRECTOR, MANAGER, OFFICER, EMPLOYEE, ACCOUNTANT, LEGAL COUNSEL OR OTHER REPRESENTATIVE OF SELLER, THE GENERAL PARTNER, THE PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES). EACH OF THE PARENT PARTIES ACKNOWLEDGES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS AND BUSINESS OF THE GENERAL PARTNER, THE PARTNERSHIP AND THEIR RESPECTIVE SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EACH OF THE PARENT PARTIES HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EACH OF THE PARENT PARTIES SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF SELLER, THE GENERAL PARTNER OR THE PARTNERSHIP MAKES, NOR HAS MADE, ANY REPRESENTATION OR WARRANTY CONCERNING WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO ANY OF THE PARENT PARTIES OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE GENERAL PARTNER, THE PARTNERSHIP OR THEIR RESPECTIVE SUBSIDIARIES OR AFFILIATES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. EACH OF THE PARENT PARTIES SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF SELLER, THE GENERAL PARTNER OR THE PARTNERSHIP MAKES, NOR HAS MADE (NOR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS OR THEIR BEHALF), ANY REPRESENTATIONS OR WARRANTIES TO THE PARENT PARTIES REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE GENERAL PARTNER OR THE PARTNERSHIP OR THEIR RESPECTIVE SUBSIDIARIES. THE PARENT PARTIES SHALL ACQUIRE THE GENERAL PARTNER, THE PARTNERSHIP AND THEIR RESPECTIVE SUBSIDIARIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE GENERAL PARTNER, THE PARTNERSHIP, THEIR RESPECTIVE SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE PARTNERSHIP DISCLOSURE SCHEDULE) AND ARTICLE V, IN EACH CASE, SUBJECT TO SECTION 10.2 HEREOF. EACH OF THE PARENT PARTIES HEREBY WAIVES, ON BEHALF OF ITSELF, ITS RESPECTIVE SUBSIDIARIES (INCLUDING, AFTER THE CLOSING, THE GENERAL PARTNER, THE SURVIVING CORPORATION AND EACH OF THEIR RESPECTIVE SUBSIDIARIES) AND ITS RESPECTIVE AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE UNITHOLDERS, SELLER, THE UNITHOLDERS’ REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, EMPLOYEE, AGENT CONSULTANT OR REPRESENTATIVE OF ANY OF THE FOREGOING, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THE OPERATION OF THE GENERAL PARTNER, THE PARTNERSHIP, THEIR RESPECTIVE SUBSIDIARIES OR THEIR RESPECTIVE BUSINESSES OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, AND ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED HEREUNDER) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE (INCLUDING PROPERTY TAX) CONSEQUENCES ANY RIGHT, WHETHER ARISING AT LAW OR IN EQUITY, TO SEEK INDEMNIFICATION, CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY PERSON OTHER RECOURSE OR REMEDY, INCLUDING AS MAY ARISE UNDER COMMON LAW). FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THIS SECTION 10.1, NO CLAIM SHALL BE BROUGHT OR MAINTAINED BY ANY OF THE TRANSACTIONS, ACTIONS PARENT PARTIES OR EVENTS (INCLUDING THE ALLOCATION ANY OF TAX ITEMS) THAT MAY ARISE OUT OF THEIR RESPECTIVE SUBSIDIARIES OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER AFFILIATES (INCLUDING, WITHOUT LIMITATIONAFTER THE CLOSING, THE GENERAL PARTNER, THE SURVIVING CORPORATION AND EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED OF THEIR RESPECTIVE SUBSIDIARIES) AGAINST THE UNITHOLDERS, SELLER, THE UNITHOLDERS’ REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY PARTNER, MEMBER) ACKNOWLEDGES THAT , DIRECTOR, MANAGER, OFFICER, EMPLOYEE, ACCOUNTANT, LEGAL COUNSEL OR OTHER REPRESENTATIVE OF ANY OF THE FOREGOING, AND NO PERSON HAS MADE RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY TAX OF THEM, BY VIRTUE OF OR BASED UPON ANY ALLEGED MISREPRESENTATION OR INACCURACY IN OR BREACH OF ANY OF THE REPRESENTATIONS, ECONOMIC REPRESENTATIONS WARRANTIES OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO COVENANTS SET FORTH OR CONTAINED IN THIS AGREEMENT, EACH MEMBER (INCLUDINGANY CERTIFICATE, WITHOUT LIMITATIONINSTRUMENT, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OPINION OR OTHER REPRESENTATIONS HAVE BEEN MADE BY DOCUMENTS DELIVERED HEREUNDER, THE SUBJECT MATTER OF THIS AGREEMENT, THE BUSINESS, THE OWNERSHIP, OPERATION, MANAGEMENT, USE OR ON BEHALF CONTROL OF THE BUSINESS OF THE GENERAL PARTNER, THE PARTNERSHIP, THEIR RESPECTIVE SUBSIDIARIES, ANY MEMBER OF THEIR ASSETS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OTHER PERSON ACTIONS OR OMISSIONS AT OR PRIOR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLOSING DATE.
Appears in 1 contract
Sources: Purchase Agreement (Amsurg Corp)
No Other Representations. NO PERSON HAS MADE NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE BUYER OR ANY REPRESENTATION OF ITS AFFILIATES OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER TAX INFORMATION (INCLUDING PROPERTY TAX) CONSEQUENCES ANY FINANCIAL PROJECTIONS OR OTHER MATERIALS MADE AVAILABLE TO THE BUYER OR ANY PERSON OF ITS RESPECTIVE AFFILIATES OR REPRESENTATIVES IN CERTAIN “DATA ROOMS” OR MANAGEMENT PRESENTATIONS OR OTHERWISE), EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE II, ARTICLE III, THE DISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT, NONE OF THE TRANSACTIONSSELLER NOR ANY OTHER PERSON MAKES, ACTIONS AND EACH OF THE SELLER OR EVENTS (INCLUDING ANY OTHER PERSON EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE ALLOCATION CONDITION AND VALUE OR QUALITY OF TAX ITEMS) THAT MAY ARISE OUT OF THE SHARES OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")COMPANY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT ARTICLE II, ARTICLE III, THE DISCLOSURE SCHEDULE OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS CONTRACT OR OTHER REPRESENTATIONS. CONSISTENT CERTIFICATE DELIVERED IN CONNECTION WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (BUYER ACKNOWLEDGES THAT NONE OF THE SELLER NOR ANY OTHER PERSON ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY SELLER OR ON BEHALF OF ANY MEMBER OR OTHER PERSON MAKES ANY OTHER PERSON EXPRESS OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC IMPLIED REPRESENTATION OR OTHER REPRESENTATIONS. IN WARRANTY WITH RESPECT TO THE EVENT ANY MEMBER (SELLER OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM COMPANY OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONSINFORMATION PROVIDED (INCLUDING THEIR RESPECTIVE ASSETS, LIABILITIES OR OPERATIONS), IF ANY, TO THE BUYER, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, INCLUDING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE BUYER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND EACH OF ITS AND THEIR RESPECTIVE REPRESENTATIVES, ACKNOWLEDGES THAT IT IS NOT RELYING NOR HAS IT RELIED ON ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES FROM THE SELLER OR ANY OTHER PERSON EXCEPT FOR THOSE EXPRESSLY MADE IN THIS ARTICLE II, ARTICLE III, THE MEMBER TAKING DISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT AND THAT ONLY THOSE REPRESENTATIONS AND WARRANTIES MADE IN THIS ARTICLE II, ARTICLE III, THE ACTION (ORDISCLOSURE SCHEDULE OR ANY OTHER CONTRACT OR CERTIFICATE DELIVERED IN CONNECTION WITH THIS AGREEMENT SHALL HAVE ANY LEGAL EFFECT. NOTWITHSTANDING THE FOREGOING OR ANYTHING HEREIN TO THE CONTRARY, NOTHING HEREIN SHALL RESTRICT OR OTHERWISE LIMIT THE PARTIES’ RIGHTS OR REMEDIES IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWFRAUD.
Appears in 1 contract
Sources: Stock Purchase Agreement (Telix Pharmaceuticals LTD)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT ARTICLE IV, THE COMPANY AND THE STOCKHOLDERS DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT MADE OR CONTEMPLATED BYINFORMATION COMMUNICATED (WHETHER ORALLY OR IN WRITING, THIS AGREEMENT EXPRESS OR IMPLIED) TO BUYER, ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION OR ADVICE WHICH MAY HAVE BEEN PROVIDED TO BUYER, ITS AFFILIATES OR REPRESENTATIVES BY ANY STOCKHOLDER, PARTNER, DIRECTOR, OFFICER, EMPLOYEE, ACCOUNTING FIRM, LEGAL COUNSEL OR OTHER AGENT, CONSULTANT OR REPRESENTATIVE OF ANY STOCKHOLDER OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"COMPANY), NO PERSON IS MAKING INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE, OR QUALITY OF THE COMPANY’S BUSINESSES OR ITS ASSETS, AND THE COMPANY AND THE STOCKHOLDERS SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY AS TO OF MERCHANTABILITY, USAGE, SUITABILITY, OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF PARTICULAR PURPOSE WITH RESPECT TO ITS ASSETS, ANY OTHER REPRESENTATIONSPART THEREOF, THE MEMBER TAKING THE ACTION (ORWORKMANSHIP THEREOF, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES ABSENCE OF AN INTEREST OF A MEMBERANY DEFECTS THEREIN, IMMEDIATELY UPON DEMANDWHETHER LATENT OR PATENT, FOR ANY AND ALL LOSSESIT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESWHERE IS” ON THE CLOSING DATE, AND COSTS OF RESPONSE, NEGOTIATIONIN ITS PRESENT CONDITION, AND DEFENSE, INCURRED BY THOSE MEMBERS BUYER SHALL RELY SOLELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF AS WELL AS THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), THIS ARTICLE IV AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM CERTIFICATE DELIVERED BY THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCOMPANY PURSUANT HERETO.
Appears in 1 contract
Sources: Merger Agreement (Castellum, Inc.)
No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III (INCLUDING IN THE DISCLOSURE SCHEDULE), ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF SELLER OR ANY OTHER PERSON MAKES, AND SELLER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS THAT HAVE BEEN MADE AVAILABLE TO BUYER OR ANY OF BUYER’S REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS BY THE MANAGEMENT OF SELLER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY BUYER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE III (INCLUDING IN THE DISCLOSURE SCHEDULE), THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY SELLER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF SELLER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY BUYER OR AFFILIATE OF BUYER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 3.26 SHALL RESTRICT OR PROHIBIT ANY CLAIM ARISING OUT OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANYFRAUD (AS DEFINED HEREIN) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWSET FORTH HEREIN.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED AS SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYIN ANY DOCUMENT EXECUTED AND DELIVERED BY SELLER AT CLOSING, NEITHER SELLER NOR SELLER'S REPRESENTATIVES MAKE OR HAVE MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, ITS PHYSICAL CONDITION, INCOME TO BE DERIVED THEREFROM OR EXPENSES TO BE INCURRED WITH RESPECT THERETO, OR ITS OBLIGATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING THE SAME. EXCEPT AS SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT EXECUTED AND DELIVERED BY SELLER AT CLOSING, ALL ASSETS SOLD HEREBY ARE SOLD "AS IS" AND "WHERE IS." THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS BETWEEN SELLER AND PURCHASER COLLATERAL TO OR AFFECTING THE ASSET PURCHASE PROPERTY EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT (COLLECTIVELY, "OR ANY DOCUMENT EXECUTED AND DELIVERED BY SELLER AT CLOSING. ANY SUIT BY A PARTY FOR ANY BREACH BY THE OTHER PARTY OF ANY EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR AND WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, CONTAINED IN PARAGRAPH 12 HEREOF SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS FOREVER BARRED UNLESS WRITTEN NOTICE OF ANY CLAIM BY A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON PARTY HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT BEEN DELIVERED TO THE OTHER MEMBERS PARTY PRIOR TO ENTER INTO THIS AGREEMENT, EACH MEMBER THE EXPIRATION OF TWELVE (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER12) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, MONTHS FROM THE DATE OF DEMAND UNTIL PAIDTHE CLOSING AT WHICH SUCH REPRESENTATIONS AND WARRANTIES WERE MADE, AT AND NO ACTION BASED THEREON SHALL BE COMMENCED MORE THAN EIGHTEEN (18) MONTHS AFTER THAT DATE, EXCEPT THAT REPRESENTATIONS AND WARRANTIES MADE BY SELLER SHALL EXPIRE, (A) AS THE HIGHEST RATE PERMITTED SAME APPLIES TO THE SPACES AND LEASES COVERED BY APPLICABLE USURY LAWTHE MASTER LEASE, SHALL EXPIRE TWELVE (12) MONTHS AFTER THE DATE SUCH SPACE IS RELEASED FROM THE MASTER LEASE AND (B) AS THE SAME APPLIES TO THE WORK REQUIRED TO BE PERFORMED BY SELLER UNDER THE ESCROW AGREEMENT, SHALL EXPIRE TWELVE (12) MONTHS AFTER THE AMOUNT ESCROWED THEREFOR IS RELEASED FROM THE ESCROW.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Urstadt Biddle Properties Inc)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT Article V (AS MODIFIED BY THE SCHEDULES), NEITHER THE COMPANY NOR ANY OTHER PERSON MAKES, OR CONTEMPLATED BYHAS MADE, THIS AGREEMENT ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY OR ITS SUBSIDIARIES OR THE ASSET PURCHASE AGREEMENT TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE TO THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES (COLLECTIVELY, "EXPRESS REPRESENTATIONS"EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN Article V OF THIS AGREEMENT), NO PERSON IS WHETHER MADE BY THE COMPANY OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE COMPANY OR ANY OF ITS AFFILIATES OR REPRESENTATIVES). PARENT AND MERGER SUB ACKNOWLEDGE THAT THEY HAVE CONDUCTED THEIR OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS AND BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES AND, IN MAKING THEIR DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, PARENT AND MERGER SUB HAVE RELIED ON THE RESULTS OF THEIR OWN INDEPENDENT INVESTIGATION AND THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT MAKE, NOR HAS MADE, ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSWARRANTY, OTHER THAN THE EXPRESS REPRESENTATIONSOR IMPLIED, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO PARENT, MERGER SUB OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE COMPANY OR ITS SUBSIDIARIES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT MAKE, NOR HAS MADE (OR HAS AUTHORIZED ANY OTHER REPRESENTATIONSPERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATIONS OR WARRANTIES TO PARENT OR MERGER SUB REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY OR ITS SUBSIDIARIES OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. PARENT AND MERGER SUB SHALL ACQUIRE THE COMPANY AND ITS SUBSIDIARIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY, THE MEMBER TAKING THE ACTION COMPANY’S SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (ORII) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMANDEACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (AS MODIFIED BY THE SCHEDULES). EXCEPT WITH RESPECT TO ANY CLAIM IN RESPECT OF ACTUAL OR INTENTIONAL FRAUD, EACH OF PARENT AND MERGER SUB HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL LOSSESRIGHTS, COSTS CLAIMS AND EXPENSESCAUSES OF ACTION IT MAY HAVE AGAINST THE COMPANY COMMON STOCKHOLDERS, INCLUDINGTHE COMPANY OPTIONHOLDERS, WITHOUT LIMITATIONTHE COMPANY RSU HOLDERS, LEGAL FEESTHE EQUITYHOLDERS’ REPRESENTATIVE, ACCOUNTING FEESANY OF THEIR RESPECTIVE AFFILIATES OR ANY OFFICER, CONSULTING FEESDIRECTOR, MANAGER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF ANY OF THE FOREGOING RELATING TO THIS AGREEMENT AND COSTS THE TRANSACTIONS CONTEMPLATED HEREBY. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 9.1 SHALL BE CONSTRUED TO LIMIT THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING ARTICLE V (AS MODIFIED BY THE SCHEDULES). NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL THIS SECTION 9.1 BE DEEMED TO LIMIT THE RIGHT TO BRING, OR CONSTITUTE THE WAIVER OR RELEASE OF, ANY CLAIM IN RESPECT OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH ACTUAL OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWINTENTIONAL FRAUD.
Appears in 1 contract
No Other Representations. NO BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE 3 AND ARTICLE 4 (AS MODIFIED BY THE SCHEDULES), NONE OF THE SELLERS, THE COMPANY, THEIR RESPECTIVE AFFILIATES, OR ANY OTHER PERSON HAS MADE OR IS MAKING AN EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE SELLERS, THE COMPANY, OR THEIR RESPECTIVE AFFILIATES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR WITH RESPECT TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, RECORDS OR DATA NOW, HERETOFORE OR HEREAFTER MADE AVAILABLE TO BUYER, ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES, IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE SELLERS’ AND THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE SELLERS, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, TRUSTEES, AFFILIATES OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO BUYER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, TRUSTEES, AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, TRUSTEES, AFFILIATES OR REPRESENTATIVES BY ANY REPRESENTATIVE OR AFFILIATE OF THE SELLERS). BUYER ACKNOWLEDGES AND AGREES THAT (I) THERE ARE SUBSTANTIAL UNCERTAINTIES INHERENT IN ATTEMPTING TO MAKE PROJECTIONS AND OTHER FORECASTS REGARDING THE STERLING COMPANY AND THE COMPANY GROUP AND IS ACCORDINGLY NOT RELYING ON ANY SUCH PROJECTIONS OR OTHER FORECASTS THAT MAY HAVE BEEN PROVIDED TO BUYER AND ITS AFFILIATES AND REPRESENTATIVES IN CONNECTION WITH THE NEGOTIATION AND CONSUMMATION OF THE SALE AND THIS AGREEMENT AND (II) BUYER HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS, LIABILITIES AND BUSINESS OF THE STERLING COMPANY AND THE COMPANY GROUP AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, BUYER HAS RELIED SOLELY ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE COMPANY SET FORTH IN ARTICLE 3 AND ARTICLE 4 (AS MODIFIED BY THE SCHEDULES). IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF THE SELLERS, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES MAKES, OR HAS MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROJECTIONS OR FORECASTS DELIVERED TO BUYER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, TRUSTEES, AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE SELLERS, THE COMPANY OR THEIR RESPECTIVE AFFILIATES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NONE OF THE SELLERS, THE COMPANY NOR ANY OF THEIR RESPECTIVE AFFILIATES MAKES, OR HAS MADE (OR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATION OR WARRANTY CONCERNING TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY GROUP OR THE STERLING COMPANY. BUYER SHALL ACQUIRE THE COMPANY GROUP AND THE STERLING COMPANY (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE FEDERALQUALITY, STATEMERCHANTABILITY, LOCAL FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON CONDITION OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYSTERLING COMPANY, THE "TAX REPRESENTATIONS") COMPANY GROUP, ANY ASSETS OR ANY PART THEREOF AND (II) ANY PROJECTIONSIN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, CASH FLOWSEXCEPT, POTENTIAL PROFITIN EACH CASE, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR ARTICLE 3 AND ARTICLE 4 (AS MODIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"SCHEDULES), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
No Other Representations. NO EACH OF PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS QUALIFIED BY THE SCHEDULES), NEITHER THE COMPANY NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY OR ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER PURSUANT TO THE PRIOR SENTENCE OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANY OR ANY OF ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES BY ANY REPRESENTATIVE OR AFFILIATE OF THE COMPANY). EACH OF PARENT AND MERGER SUB ACKNOWLEDGES AND AGREES THAT ITS HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS, LIABILITIES AND BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EACH OF PARENT AND MERGER SUB HAVE RELIED SOLELY ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN ARTICLE IV (AS MODIFIED BY THE SCHEDULES). EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV (AS MODIFIED BY THE SCHEDULES) NONE OF THE COMPANY, ITS SUBSIDIARIES, NOR ANY OTHER PERSON HAS MADE OR IS MAKING AN EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY, ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ACCURACY OR COMPLETENESS OF THE INFORMATION, RECORDS OR DATA NOW, HERETOFORE OR HEREAFTER MADE AVAILABLE TO PARENT, MERGER SUB, OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EACH OF PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE COMPANY DOES NOT MAKE, NOR HAS MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO PARENT, MERGER SUB OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE COMPANY OR ITS SUBSIDIARIES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. EACH OF PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE COMPANY DOES NOT MAKE, NOR HAS MADE (OR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATION OR WARRANTY CONCERNING TO PARENT OR MERGER SUB REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY OR ITS SUBSIDIARIES. EACH OF PARENT AND MERGER SUB SHALL ACQUIRE THE COMPANY AND ITS SUBSIDIARIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY, ITS SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE SCHEDULES). EACH OF PARENT AND MERGER SUB HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES (INCLUDING, AFTER THE CLOSING, THE SURVIVING CORPORATION AND EACH OF ITS SUBSIDIARIES), FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE COMPANY STOCKHOLDERS, THE COMPANY OPTIONHOLDERS, THE EQUITYHOLDERS’ REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES OF ANY OF THE FOREGOING, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THE OPERATION OF THE COMPANY, THE COMPANY’S SUBSIDIARIES OR THEIR RESPECTIVE BUSINESSES OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, THE SCHEDULES AND EXHIBITS HERETO AND ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED IN CONNECTION HEREWITH) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE (INCLUDING PROPERTY TAXANY RIGHT, WHETHER ARISING AT LAW OR IN EQUITY, TO SEEK INDEMNIFICATION, CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY OTHER RECOURSE OR REMEDY, INCLUDING AS MAY ARISE UNDER COMMON LAW). FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THIS SECTION 9.1, NO ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM OR LEGAL PROCEEDING OF ANY KIND (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) CONSEQUENCES TO SHALL BE BROUGHT OR MAINTAINED BY ANY PERSON OF PARENT, MERGER SUB OR ANY OF THEIR RESPECTIVE AFFILIATES (INCLUDING, AFTER THE CLOSING, THE SURVIVING CORPORATION AND EACH OF ITS SUBSIDIARIES) AGAINST THE COMPANY STOCKHOLDERS, THE COMPANY OPTIONHOLDERS, THE EQUITYHOLDERS’ REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES OF ANY OF THE TRANSACTIONSFOREGOING, ACTIONS AND NO RECOURSE SHALL BE SOUGHT OR EVENTS (INCLUDING THE ALLOCATION GRANTED AGAINST ANY OF TAX ITEMS) THAT MAY ARISE OUT THEM, BY VIRTUE OF OR BE CONTEMPLATED BY BASED UPON (I) ANY ALLEGED MISREPRESENTATION OR INACCURACY IN OR BREACH OF ANY OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS SET FORTH OR CONTAINED IN THIS AGREEMENT (COLLECTIVELYAGREEMENT, ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED HEREUNDER, THE "TAX REPRESENTATIONS") EXHIBITS AND SCHEDULES HERETO OR THE SUBJECT MATTER HEREOF OR THEREOF, OR (II) ANY PROJECTIONSTHE BUSINESS, CASH FLOWSTHE OWNERSHIP, POTENTIAL PROFITOPERATION, MANAGEMENT, USE OR YIELDS FROM, PERFORMANCE CONTROL OF OR ECONOMIC CONSEQUENCES THE BUSINESS OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYCOMPANY’S SUBSIDIARIES, "EXPRESS REPRESENTATIONS")ANY OF THEIR ASSETS, NO PERSON IS MAKING ANY REPRESENTATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS ACTIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT OMISSIONS AT OR PRIOR TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLOSING DATE.
Appears in 1 contract
No Other Representations. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE INITIAL AQ UNITHOLDER, THE BLOCKER SELLERS OR THE BLOCKERS IN THIS ARTICLE IV, THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN ARTICLE III, THE CERTIFICATES DELIVERED BY THE BLOCKER SELLERS PURSUANT TO SECTION 2.02(d)(iii) AND THE CERTIFICATE DELIVERED BY THE COMPANY PURSUANT TO SECTION 2.02(c)(vi), NO BLOCKER SELLER NOR ANY BLOCKER HAS, NOR HAS ANY AFFILIATE THEREOF OR ANY OTHER PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING WITH RESPECT TO THE BLOCKERS OR ANY OTHER PERSON OR THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, CONDITION (IFINANCIAL OR OTHERWISE) OR PROSPECTS, NOTWITHSTANDING THE FEDERALDELIVERY OR DISCLOSURE TO THE BUYER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES OF ANY DOCUMENTATION, STATEFORECASTS, LOCAL PROJECTIONS OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES INFORMATION WITH RESPECT TO ANY PERSON ONE OR MORE OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")FOREGOING. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY THE INITIAL AQ UNITHOLDER, THE BLOCKER SELLERS OR THE BLOCKERS IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE IV, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYREPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY THE COMPANY IN ARTICLE III, "EXPRESS REPRESENTATIONS"THE CERTIFICATES DELIVERED BY THE BLOCKER SELLERS PURSUANT TO SECTION 2.02(d)(iii) AND THE CERTIFICATE DELIVERED BY THE COMPANY PURSUANT TO SECTION 2.02(c)(vi), NO PERSON IS MAKING ANY REPRESENTATION ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR WARRANTY AS TO ANY OTHER MATTER (ALL IMPLIED, ARE EXPRESSLY DISCLAIMED BY SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS")BLOCKER SELLERS AND SUCH BLOCKERS. EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT NOTWITHSTANDING ANYTHING TO THE OTHER MEMBERS TO ENTER INTO CONTRARY IN THIS AGREEMENTSECTION 4.10, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF NOTHING IN THIS SECTION 4.10 SHALL RELIEVE ANY PERSON FROM ANY LIABILITY OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) DAMAGES RESULTING FROM ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONSFRAUD. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.ARTICLE V
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY PARENT, HOLDCO AND MERGER SUB IN THIS ARTICLE III (AS MODIFIED BY THE PARENT SCHEDULE), NEITHER PARENT, HOLDCO, MERGER SUB, THE COMMITTEE, ANY AFFILIATE OF PARENT, HOLDCO OR MERGER SUB NOR ANY OTHER PERSON HAS MADE MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO PARENT, HOLDCO, MERGER SUB, THE FEDERALPARENT ORDINARY SHARES, STATETHE HOLDCO SHARES, LOCAL THE BUSINESS OF PARENT AND ITS SUBSIDAIRIES OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE OTHER TRANSACTION DOCUMENTS, THE "TAX REPRESENTATIONS") AND PARENT, HOLDCO AND MERGER SUB HEREBY EXPRESSLY DISCLAIM ANY OTHER REPRESENTATIONS OR (II) WARRANTIES, WHETHER IMPLIED OR MADE BY PARENT, HOLDCO, MERGER SUB OR ANY PROJECTIONSOF THEIR RESPECTIVE OFFICERS, CASH FLOWSMANAGERS, POTENTIAL PROFITDIRECTORS, STOCKHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY PARENT, HOLDCO AND MERGER SUB IN THIS AGREEMENT ARTICLE III (AS MODIFIED BY THE PARENT SCHEDULE), PARENT, HOLDCO AND MERGER SUB HEREBY EXPRESSLY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT OR CONTEMPLATED BYINFORMATION MADE, THIS AGREEMENT COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO THE COMPANY, THE SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE COMPANY, THE SELLERS ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY MANAGER, OFFICER, DIRECTOR, STOCKHOLDER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF PARENT, HOLDCO OR MERGER SUB OR ANY OF THEIR RESPECTIVE AFFILIATES). PARENT, HOLDCO AND MERGER SUB MAKE NO REPRESENTATIONS OR WARRANTIES TO THE COMPANY OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION SELLERS REGARDING THE PROBABLE SUCCESS OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, PROFITABILITY OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT BUSINESS OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS PARENT AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWITS SUBSIDIARIES.
Appears in 1 contract
No Other Representations. NO PERSON HAS EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE 7 OR ELSEWHERE IN THIS AGREEMENT, PURCHASER AND ORBCOMM EXPRESSLY DISCLAIM ANY AND MAKE NO, AND SHALL NOT BE DEEMED TO HAVE MADE ANY, REPRESENTATIONS OR WARRANTIES, WRITTEN OR VERBAL, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO PURCHASER, ORBCOMM, THE BUSINESS, THEIR OPERATIONS, ASSETS, STOCK, LIABILITIES, CONDITION (FINANCIAL OR OTHERWISE) OR PROSPECTS. EACH OF THE SELLERS HEREBY EXPRESSLY WAIVES ANY CLAIMS AND CAUSES OF ACTION AND ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE IN EACH CASE RELATING TO THE ACCURACY, COMPLETENESS OR MATERIALITY OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR VERBAL) HERETOFORE FURNISHED TO SELLERS AND THEIR RESPECTIVE REPRESENTATIVES BY OR ON BEHALF OF PURCHASER OR ORBCOMM OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE 7 OR ELSEWHERE IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER PURCHASER NOR ORBCOMM ARE MAKING ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES WITH RESPECT TO ANY PERSON FINANCIAL PROJECTION, EARNOUT AMOUNT OR FORECAST RELATING TO THE ANTICIPATED FINANCIAL RESULTS OF THE TRANSACTIONSBUSINESS, ACTIONS OPERATIONS, ASSETS, LIABILITIES, CONDITION (FINANCIAL OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS"OTHERWISE) OR (II) ANY PROJECTIONSPROSPECTS RELATING TO THE BUSINESS, CASH FLOWS, POTENTIAL PROFIT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS ARTICLE 7 OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP ELSEWHERE IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THIS AGREEMENT. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED TO SELLERS SET FORTH IN THIS AGREEMENT ARTICLE 7 OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO ELSEWHERE IN THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION OF SELLERS HEREBY AGREES THAT NEITHER PURCHASER NOR ORBCOMM WILL HAVE OR BE SUBJECT TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF ANY LIABILITY TO SELLERS OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER SELLER INDEMNIFIED PARTIES OR ANY OTHER PERSON RESULTING FROM THE DISTRIBUTION TO SELLERS OR THEIR RESPECTIVE REPRESENTATIVES, OR THEIR USE OF, ANY SUCH PROJECTION OR FORECAST AND ANY INFORMATION, DOCUMENT OR MATERIAL MADE AVAILABLE TO SEEK DAMAGES, A RIGHT OF OFFSET SELLERS OR THEIR RESPECTIVE REPRESENTATIVES OR AFFILIATES IN MANAGEMENT PRESENTATIONS OR ANY OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. FORM IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, EXPECTATION OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN TRANSACTIONS CONTEMPLATED BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHIS AGREEMENT.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT ARTICLE V, SUCH STOCKHOLDER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT MADE OR CONTEMPLATED BYINFORMATION COMMUNICATED (WHETHER ORALLY OR IN WRITING) TO THE SURVIVING ENTITY, THIS AGREEMENT ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION OR ADVICE WHICH MAY HAVE BEEN PROVIDED TO BUYER, ITS AFFILIATES OR REPRESENTATIVES BY ANY STOCKHOLDER, PARTNER, DIRECTOR, OFFICER, EMPLOYEE, ACCOUNTING FIRM, LEGAL COUNSEL OR OTHER AGENT, CONSULTANT OR REPRESENTATIVE OF ANY STOCKHOLDER OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"COMPANY), NO PERSON IS MAKING INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE, OR QUALITY OF THE COMPANY’S BUSINESSES OR ITS ASSETS, AND THE COMPANY AND THE STOCKHOLDERS SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY AS TO OF MERCHANTABILITY, USAGE, SUITABILITY, OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF PARTICULAR PURPOSE WITH RESPECT TO ITS ASSETS, ANY OTHER REPRESENTATIONSPART THEREOF, THE MEMBER TAKING THE ACTION (ORWORKMANSHIP THEREOF, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES ABSENCE OF AN INTEREST OF A MEMBERANY DEFECTS THEREIN, IMMEDIATELY UPON DEMANDWHETHER LATENT OR PATENT, FOR ANY AND ALL LOSSESIT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESWHERE IS” ON THE CLOSING DATE, AND COSTS OF RESPONSE, NEGOTIATIONIN ITS PRESENT CONDITION, AND DEFENSE, INCURRED BY THOSE MEMBERS BUYER SHALL RELY SOLELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF AS WELL AS THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SET FORTH IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), THIS ARTICLE V AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM CERTIFICATE DELIVERED BY THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCOMPANY PURSUANT HERETO.
Appears in 1 contract
Sources: Merger Agreement (Castellum, Inc.)
No Other Representations. NO (a) EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV AND ARTICLE V (EACH AS MODIFIED BY THE ENDEAVOR DISCLOSURE SCHEDULES), NONE OF THE ENDEAVOR PARTIES NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE ENDEAVOR PARTIES OR THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE ENDEAVOR PARTIES’ EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES (OTHER THAN THOSE CONTAINED IN ARTICLE IV AND ARTICLE V (EACH AS MODIFIED BY THE ENDEAVOR DISCLOSURE SCHEDULES)), WHETHER MADE BY THE ENDEAVOR PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY OF THE SELLERS, BLOCKER PARENTS, BLOCKERS OR THEIR RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO ANY SELLER, BLOCKER PARENT, BLOCKER OR ITS RESPECTIVE EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES BY ANY REPRESENTATIVE OR AFFILIATE OF THE ENDEAVOR PARTIES). EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS ACKNOWLEDGES AND AGREES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS, LIABILITIES AND BUSINESS OF THE ENDEAVOR PARTIES AND THEIR RESPECTIVE SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, SUCH SELLER, BLOCKER PARENT OR BLOCKER HAS RELIED SOLELY ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE ENDEAVOR PARTIES SET FORTH IN ARTICLE IV AND ARTICLE V (EACH AS MODIFIED BY THE ENDEAVOR DISCLOSURE SCHEDULES) AND NOT ANY OTHER MATTERS OTHER THAN AS SET FORTH IN THIS SENTENCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV AND ARTICLE V (EACH AS MODIFIED BY THE ENDEAVOR DISCLOSURE SCHEDULES) NONE OF THE ENDEAVOR PARTIES, THEIR RESPECTIVE SUBSIDIARIES, NOR ANY OTHER PERSON HAS MADE OR IS MAKING AN EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE ENDEAVOR PARTIES, THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ACCURACY OR COMPLETENESS OF THE INFORMATION, RECORDS OR DATA NOW, HERETOFORE OR HEREAFTER MADE AVAILABLE TO THE SELLERS, BLOCKER PARENTS, BLOCKERS OR THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE ENDEAVOR PARTIES DO NOT MAKE, NOR HAVE MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO SELLER, BLOCKER PARENT, BLOCKER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE ENDEAVOR PARTIES OR THEIR RESPECTIVE SUBSIDIARIES WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE ENDEAVOR PARTIES DO NOT MAKE, NOR HAVE MADE (OR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATION OR WARRANTY CONCERNING TO ANY SELLER, BLOCKER PARENT OR BLOCKER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE ENDEAVOR PARTIES OR THEIR RESPECTIVE SUBSIDIARIES. EACH SELLER OR BLOCKER SHALL ACQUIRE THE ACQUIRED SECURITIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE ENDEAVOR PARTIES, THEIR RESPECTIVE SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV AND ARTICLE V (EACH AS MODIFIED BY THE ENDEAVOR DISCLOSURE SCHEDULES).
(b) EACH OF THE SELLERS, BLOCKER PARENTS AND BLOCKERS HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE EQUITYHOLDERS OF THE ENDEAVOR PARTIES, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES OF ANY OF THE FOREGOING, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, THE SCHEDULES AND EXHIBITS HERETO AND ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED IN CONNECTION HEREWITH) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE (INCLUDING PROPERTY TAXANY RIGHT, WHETHER ARISING AT LAW OR IN EQUITY, TO SEEK INDEMNIFICATION, CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY OTHER RECOURSE OR REMEDY, INCLUDING AS MAY ARISE UNDER COMMON LAW). FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THIS SECTION 11.2, NO ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM OR LEGAL PROCEEDING OF ANY KIND (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) CONSEQUENCES TO SHALL BE BROUGHT OR MAINTAINED BY ANY PERSON SELLER, BLOCKER PARENT, BLOCKER OR ANY OF THEIR RESPECTIVE AFFILIATES AGAINST THE EQUITYHOLDERS OF THE TRANSACTIONSENDEAVOR PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES OR ANY EQUITYHOLDERS, ACTIONS INCORPORATORS, CONTROLLING PERSONS, LIMITED OR EVENTS (INCLUDING GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES OF ANY OF THE ALLOCATION FOREGOING, AND NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF TAX ITEMS) THAT MAY ARISE OUT THEM, BY VIRTUE OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, BASED UPON ANY ALLEGED MISREPRESENTATION OR INACCURACY IN OR BREACH OF ANY OF THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS WARRANTIES OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO COVENANTS SET FORTH OR CONTAINED IN THIS AGREEMENT, EACH MEMBER (INCLUDINGANY CERTIFICATE, WITHOUT LIMITATIONINSTRUMENT, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OPINION OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (DOCUMENTS DELIVERED HEREUNDER OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS EXHIBITS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWSCHEDULES HERETO.
Appears in 1 contract
Sources: Transaction Agreement (Endeavor Group Holdings, Inc.)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT ARTICLE VII OR CONTEMPLATED BYANY OTHER TRANSACTION DOCUMENT, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO NONE OF BLOCKER II SELLER NOR ANY OTHER PERSON IS MAKING ACTING ON BEHALF OF BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY AS TO THE PARTIES, EXPRESS OR IMPLIED. BLOCKER II SELLER ACKNOWLEDGES THAT (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE III OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSTRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ACTING ON BEHALF OF ITSELFTHP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, HIMSELF EXPRESS OR HERSELF IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV, ARTICLE VI, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I, BLOCKER I SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF ALL ASSIGNEES BLOCKER I OR BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (C) EXCEPT FOR THE REPRESENTATIONS AND ALL HOLDERS) WARRANTIES EXPRESSLY CONTAINED IN ARTICLE V OR ANY AND ALL RIGHTS HEOTHER TRANSACTION DOCUMENT, SHE OR IT MAY HAVE AT NONE OF BLOCKER II NOR ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR PERSON ACTING ON BEHALF OF BLOCKER II MAKES ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN WARRANTY TO THE EVENT ANY MEMBER (PARTIES, EXPRESS OR THE TRANSFEREE OF ANY INTERESTIMPLIED, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.AND
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO PERSON HAS EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE BY SELLER IN THE TRANSACTION DOCUMENTS (AS MODIFIED BY ANY SCHEDULES THERETO), NEITHER SELLER NOR THE COMPANY MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO SELLER, THE FEDERALCOMPANY, STATETHE FORMING BUSINESS, LOCAL THE CONTRIBUTED ASSETS, THE EXCLUDED ASSETS, THE CONTRIBUTED LIABILITIES, THE EXCLUDED LIABILITIES OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE OTHER TRANSACTION DOCUMENTS, AND THE "TAX REPRESENTATIONS") COMPANY AND SELLER HEREBY DISCLAIM ANY OTHER REPRESENTATIONS OR (II) WARRANTIES, WHETHER MADE BY THE COMPANY, SELLER, ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFITAFFILIATE OF THE COMPANY OR SELLER, OR YIELDS FROMANY OF THEIR RESPECTIVE OFFICERS, PERFORMANCE OF MANAGERS, EMPLOYEES, AGENTS OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT TRANSACTION DOCUMENTS (COLLECTIVELY, "EXPRESS REPRESENTATIONS"AS MODIFIED BY ANY SCHEDULES THERETO), NO PERSON IS MAKING THE COMPANY AND SELLER EXPRESSLY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR WARRANTY AS INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO BUYER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OTHER MATTER (ALL SUCH REPRESENTATIONSOPINION, OTHER THAN INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER OR ANY OF ITS AFFILIATES BY ANY MANAGER, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE EXPRESS REPRESENTATIONSCOMPANY OR SELLER, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"OR ANY OF THEIR RESPECTIVE AFFILIATES). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT THE COMPANY AND SELLER MAKE NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH WARRANTIES TO BUYER REGARDING THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF PROBABLE SUCCESS OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, PROFITABILITY OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWFORMING BUSINESS.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rti International Metals Inc)
No Other Representations. NO (a) PARENT, MERGER SUB AND SISTER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 3 (FOR THE PURPOSE OF THIS SECTION 12.01(a), AS MODIFIED PURSUANT TO THIS AGREEMENT) AND ARTICLE 4, NONE OF THE COMPANY, THE COMPANY SHAREHOLDERS, MJM OR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY, ITS SUBSIDIARIES OR THE COMPANY SHAREHOLDERS, MJM OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE ANCILLARY AGREEMENTS. PARENT, MERGER SUB AND SISTER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE TO THE COMPANY’S, THE COMPANY SHAREHOLDERS’ AND MJM’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANY OR ITS SUBSIDIARIES, THE COMPANY SHAREHOLDERS, MJM OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB, SISTER SUB OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB, SISTER SUB OR THEIR AFFILIATES BY ANY REPRESENTATIVE OF THE COMPANY, THE COMPANY SHAREHOLDERS, MJM OR ANY OF THEIR RESPECTIVE AFFILIATES). IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, PARENT, MERGER SUB AND SISTER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NONE OF THE COMPANY, ITS SUBSIDIARIES, THE COMPANY SHAREHOLDERS OR MJM HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO PARENT, BUYER, MERGER SUB OR THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE COMPANY OR ITS SUBSIDIARIES OR THEIR AFFILIATES EITHER BEFORE OR AFTER THE CLOSING DATE. PARENT, MERGER SUB AND SISTER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS SET FORTH IN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 3 (FOR THE PURPOSE OF THIS SECTION 12.01(a), AS MODIFIED PURSUANT TO THIS AGREEMENT) AND ARTICLE 4 (FOR THE PURPOSE OF THIS SECTION 12.01(a), AS MODIFIED PURSUANT TO THIS AGREEMENT), NONE OF THE COMPANY, ITS SUBSIDIARIES, ANY COMPANY SHAREHOLDER OR MJM MAKES, NOR HAS MADE, ANY REPRESENTATIONS OR WARRANTIES TO PARENT, MERGER SUB OR SISTER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY OR ITS SUBSIDIARIES. PARENT, MERGER SUB AND SISTER SUB SHALL ACQUIRE THE COMPANY (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 3 (FOR THE PURPOSE OF THIS SECTION 12.01(a), AS MODIFIED PURSUANT TO THIS AGREEMENT) AND ARTICLE 4 (FOR THE PURPOSE OF THIS SECTION 12.01(a), AS MODIFIED PURSUANT TO THIS AGREEMENT). OTHER THAN WITH RESPECT TO FRAUD, EACH OF PARENT, MERGER SUB AND SISTER SUB HEREBY WAIVES, ON BEHALF OF ITSELF, ITS SUBSIDIARIES (INCLUDING AFTER THE CLOSING, THE SURVIVING COMPANY) AND ITS AND THEIR RESPECTIVE AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE COMPANY SHAREHOLDERS, MJM AND THE SHAREHOLDER REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY OFFICER, DIRECTOR, SHAREHOLDER, TRUSTEE, MANAGER, MEMBER OR PARTNER OF ANY OF THE FOREGOING, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THE OPERATION OF THE COMPANY OR ITS BUSINESSES PRIOR TO THE CLOSING OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, AND ANY DOCUMENT DELIVERED HEREUNDER) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE, IN EACH CASE, EXCEPT ANY CLAIM FOR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO AGREEMENT THAT SURVIVES THE CLOSING UNDER THIS AGREEMENT OR ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) INDEMNIFICATION CLAIMS THAT MAY ARISE OUT BE BROUGHT SOLELY IN ACCORDANCE WITH THE PROVISIONS OF OR BE CONTEMPLATED BY THIS AGREEMENT ARTICLE 11.
(COLLECTIVELYb) THE COMPANY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONSCOMPANY SHAREHOLDERS AND MJM, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN ARTICLE 5 (FOR THE PURPOSE OF THIS AGREEMENT SECTION 12.01(b), AS MODIFIED PURSUANT TO THIS AGREEMENT), NONE OF THE PARENT, MERGER SUB, SISTER SUB OR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO PARENT OR ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY, BY THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT ANCILLARY AGREEMENTS. THE COMPANY, THE COMPANY SHAREHOLDERS AND MJM SPECIFICALLY ACKNOWLEDGE AND AGREE TO PARENT’S, MERGER SUB’S AND SISTER SUB’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY PARENT OR ITS SUBSIDIARIES, MERGER SUB, SISTER SUB OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (COLLECTIVELYORALLY OR IN WRITING) TO THE COMPANY, "EXPRESS REPRESENTATIONS"THE COMPANY SHAREHOLDERS, MJM OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE COMPANY, THE COMPANY SHAREHOLDERS, MJM OR THEIR AFFILIATES BY ANY REPRESENTATIVE OF PARENT OR ANY OF ITS AFFILIATES). IN FURTHERANCE OF THE FOREGOING, NO PERSON IS MAKING AND NOT IN LIMITATION THEREOF, THE COMPANY, THE COMPANY SHAREHOLDERS AND MJM SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NONE OF PARENT, ITS SUBSIDIARIES, MERGER SUB OR SISTER SUB HAS MADE ANY REPRESENTATION OR WARRANTY AS WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OTHER MATTER FINANCIAL PROJECTION OR FORECAST DELIVERED TO THE COMPANY, THE COMPANY SHAREHOLDERS OR MJM OR THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF PARENT OR ITS SUBSIDIARIES EITHER BEFORE OR AFTER THE CLOSING DATE. THE COMPANY, THE COMPANY SHAREHOLDERS AND MJM SPECIFICALLY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS SET FORTH IN THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 5 (ALL SUCH REPRESENTATIONSFOR THE PURPOSE OF THIS SECTION 12.01(b), AS MODIFIED PURSUANT TO THIS AGREEMENT), NONE OF PARENT, MERGER SUB OR SISTER SUB MAKES, NOR HAS MADE, ANY REPRESENTATIONS OR WARRANTIES TO THE COMPANY, THE COMPANY SHAREHOLDERS OR MJM REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF PARENT OR ITS SUBSIDIARIES. OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED WITH RESPECT TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATIONFRAUD, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONSOF THE COMPANY, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING COMPANY SHAREHOLDERS AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTMJM HEREBY WAIVES, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF ITS SUBSIDIARIES (INCLUDING AFTER THE CLOSING, THE SURVIVING COMPANY) AND ON BEHALF OF ALL ASSIGNEES ITS AND ALL HOLDERS) THEIR RESPECTIVE AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS HERIGHTS, SHE OR CLAIMS AND CAUSES OF ACTION IT MAY HAVE AT AGAINST PARENT OR ANY TIMEOF ITS AFFILIATES OR ANY OFFICER, NOW DIRECTOR, SHAREHOLDER, TRUSTEE, MANAGER, MEMBER OR IN PARTNER OF ANY OF THE FUTUREFOREGOING, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO ASSERT A CLAIM THAT ANY TAX THE OPERATION OF PARENT OR ITS BUSINESSES PRIOR TO THE CLOSING OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS WARRANTIES AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS")COVENANTS CONTAINED HEREIN, AND ANY COSTS NOT SO PAID DOCUMENT DELIVERED HEREUNDER) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON DEMAND SHALL BEAR INTERESTANY FEDERAL, FROM STATE, LOCAL OR FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE, IN EACH CASE, EXCEPT ANY CLAIM FOR BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER AGREEMENT THAT SURVIVES THE DATE CLOSING UNDER THIS AGREEMENT OR ANY INDEMNIFICATION CLAIMS THAT MAY BE BROUGHT SOLELY IN ACCORDANCE WITH THE PROVISIONS OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWARTICLE 11.
Appears in 1 contract
Sources: Merger Agreement (Universal Truckload Services, Inc.)
No Other Representations. NO BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (AS QUALIFIED BY THE SCHEDULES), NEITHER THE SELLER NOR THE COMPANY NOR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE CORPORATION, THE COMPANY OR THE COMPANY’S SUBSIDIARIES OR THE TRANSACTIONS. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE SELLER’S AND THE COMPANY’S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE SELLER, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY OTHER REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO BUYER OR ITS RESPECTIVE AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER OR ITS RESPECTIVE AFFILIATES OR REPRESENTATIVES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE SELLER, THE CORPORATION, THE COMPANY OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES. BUYER ACKNOWLEDGES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS AND BUSINESS OF THE CORPORATION, THE COMPANY AND THE COMPANY’S SUBSIDIARIES AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS, BUYER HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN. BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NEITHER THE SELLER NOR THE COMPANY MAKES, NOR HAS EITHER MADE (NOR HAS EITHER AUTHORIZED ANY OTHER PERSON TO MAKE ON ITS BEHALF), ANY REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE CORPORATION, THE COMPANY OR THE COMPANY’S SUBSIDIARIES OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. BUYER SHALL ACQUIRE THE CORPORATION, THE COMPANY AND THE COMPANY’S SUBSIDIARIES (I) WITHOUT ANY REPRESENTATION OR WARRANTY CONCERNING WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE CORPORATION OR THE COMPANY OR THE COMPANY’S SUBSIDIARIES, ANY ASSETS OR ANY PART THEREOF AND (III) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT (AS QUALIFIED BY THE SCHEDULES). BUYER HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE SELLER, THE UNITHOLDERS, THE COMPANY OPTIONHOLDERS, THE EQUITYHOLDERS’ REPRESENTATIVE, ANY OF THEIR RESPECTIVE AFFILIATES OR ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF ANY OF THE FOREGOING RELATING TO THE OPERATION OF THE CORPORATION, THE COMPANY, THE COMPANY’S SUBSIDIARIES OR THEIR RESPECTIVE BUSINESSES OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE (INCLUDING PROPERTY TAXANY RIGHT, WHETHER ARISING AT LAW OR IN EQUITY, TO SEEK INDEMNIFICATION, CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY OTHER RECOURSE OR REMEDY, INCLUDING AS MAY ARISE UNDER COMMON LAW). FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THIS SECTION 10.1, FROM AND AFTER THE CLOSING, NO CLAIM SHALL BE BROUGHT OR MAINTAINED BY BUYER OR ANY OF ITS RESPECTIVE SUBSIDIARIES OR AFFILIATES (INCLUDING, AFTER THE CLOSING, THE SURVIVING COMPANY AND EACH OF ITS SUBSIDIARIES) CONSEQUENCES TO AGAINST THE SELLER, THE UNITHOLDERS, THE COMPANY OPTIONHOLDERS, THE EQUITYHOLDERS’ REPRESENTATIVE, ANY PERSON OF THEIR RESPECTIVE AFFILIATES OR ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF ANY OF THE TRANSACTIONSFOREGOING, ACTIONS AND NO RECOURSE SHALL BE SOUGHT OR EVENTS (INCLUDING THE ALLOCATION GRANTED AGAINST ANY OF TAX ITEMS) THAT MAY ARISE OUT THEM, BY VIRTUE OF OR BE CONTEMPLATED BY BASED UPON (I) ANY ALLEGED MISREPRESENTATION OR INACCURACY IN OR BREACH OF ANY OF THE REPRESENTATIONS, WARRANTIES OR COVENANTS SET FORTH OR CONTAINED IN THIS AGREEMENT (COLLECTIVELYAGREEMENT, ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED HEREUNDER OR THE "TAX REPRESENTATIONS") SUBJECT MATTER OF THIS AGREEMENT, OR (II) ANY PROJECTIONSTHE BUSINESS, CASH FLOWSTHE OWNERSHIP, POTENTIAL PROFITOPERATION, MANAGEMENT, USE OR YIELDS FROMCONTROL OF THE BUSINESS OF THE CORPORATION, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELYOR THE COMPANY’S SUBSIDIARIES, ANY OF THEIR ASSETS, ANY OF THE "ECONOMIC REPRESENTATIONS")TRANSACTIONS CONTEMPLATED HEREBY OR ANY ACTIONS OR OMISSIONS AT OR PRIOR TO THE CLOSING DATE; PROVIDED, HOWEVER, THAT THE FOREGOING WAIVERS AND RESTRICTIONS SHALL NOT APPLY WITH RESPECT TO MATTERS THAT CANNOT BE WAIVED IN ACCORDANCE WITH LAW. EXCEPT FOR NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 10.1 SHALL BE CONSTRUED TO LIMIT THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER INCLUDING ARTICLE V AND ARTICLE VI (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN QUALIFIED BY THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"SCHEDULES), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
Sources: Transaction Agreement (Vantiv, Inc.)
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY BUYER IN THIS AGREEMENT OR IN ANY ANCILLARY AGREEMENT, NONE OF BUYER OR MERGER SUB, NOR ANY AFFILIATE OF BUYER OR MERGER SUB, NOR ANY OTHER PERSON HAS MADE OR IS MAKING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO BUYER, THE FEDERAL, STATE, LOCAL BUSINESS OF BUYER OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, OR ANY OF THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN ANCILLARY AGREEMENTS AND THE COMPANY (COLLECTIVELYACKNOWLEDGES THAT BUYER HEREBY EXPRESSLY DISCLAIMS ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES, THE "ECONOMIC REPRESENTATIONS")WHETHER IMPLIED OR MADE BY BUYER OR ANY OF ITS OFFICERS, MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS OR REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE BY BUYER IN THIS AGREEMENT OR CONTEMPLATED BYIN ANY ANCILLARY AGREEMENT, THIS AGREEMENT OR (I) THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING COMPANY ACKNOWLEDGES THAT EACH OF BUYER AND MERGER SUB HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONSPROJECTION, FORECAST OR INFORMATION MADE AVAILABLE, COMMUNICATED OR FURNISHED (ORALLY OR IN WRITING) TO THE MEMBER TAKING COMPANY OR ANY AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE ACTION (ORCOMPANY OR ANY AFFILIATES OR REPRESENTATIVES BY ANY MANAGER, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF AN INTEREST BUYER OR ANY OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"ITS AFFILIATES), AND (II) EACH OF BUYER AND MERGER SUB MAKES NO REPRESENTATIONS OR WARRANTIES TO THE COMPANY, ANY COSTS OF ITS AFFILIATES, UNITHOLDERS, MEMBERS OR SECURITYHOLDERS REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE BUSINESS OF BUYER OR THE COMPANY IN THE FUTURE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE FOREGOING SHALL NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM LIMIT THE DATE RIGHT OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWANY PARTY TO SEEK ANY AVAILABLE REMEDY FOR FRAUD.
Appears in 1 contract
No Other Representations. NO PERSON HAS MADE (a) The Company and the FRC Parties acknowledge and agree that the AMCI Parties make no representation or warranty except as set forth in Articles III and V. EXCEPT AS AND TO THE EXTENT SET FORTH IN ARTICLES III AND V AND EXCEPT FOR ANY REPRESENTATION CLAIM BASED ON FRAUD, INTENTIONAL MISREPRESENTATION OR WARRANTY CONCERNING ACTION FOR INJUNCTIVE RELIEF, THE AMCI PARTIES AND THEIR AFFILIATES HEREBY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (IORALLY OR IN WRITING) TO THE FEDERAL, STATE, LOCAL FRC PARTIES OR OTHER TAX THE COMPANY OR THEIR REPRESENTATIVES (INCLUDING PROPERTY TAX) CONSEQUENCES WITHOUT LIMITATION ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE FRC PARTIES OR THE COMPANY BY ANY PERSON DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE TRANSACTIONSAMCI PARTIES OR ANY AFFILIATE THEREOF). THE AMCI PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES TO THE FRC PARTIES OR THE COMPANY REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE BUSINESS FORMED PURSUANT TO THIS AGREEMENT.
(b) The AMCI Parties acknowledge and agree that the Company and the FRC Parties make no representation or warranty except as set forth in Article IV. EXCEPT AS AND TO THE EXTENT SET FORTH IN ARTICLE IV AND EXCEPT FOR ANY CLAIM BASED ON FRAUD, ACTIONS INTENTIONAL MISREPRESENTATION OR EVENTS ACTION FOR INJUNCTIVE RELIEF, THE COMPANY THE FRC PARTIES AND THEIR AFFILIATES HEREBY DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO THE AMCI PARTIES OR THE COMPANY OR THEIR REPRESENTATIVES (INCLUDING THE ALLOCATION OF TAX ITEMS) WITHOUT LIMITATION ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY ARISE OUT OF HAVE BEEN OR MAY BE CONTEMPLATED PROVIDED TO THE AMCI PARTIES OR THE COMPANY BY THIS AGREEMENT (COLLECTIVELYANY DIRECTOR, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONSOFFICER, CASH FLOWSEMPLOYEE, POTENTIAL PROFITAGENT, CONSULTANT, OR YIELDS FROM, PERFORMANCE REPRESENTATIVE OF THE FRC PARTIES OR ECONOMIC CONSEQUENCES OF AN INVESTMENT ANY AFFILIATE THEREOF). THE FRC PARTIES MAKE NO REPRESENTATIONS OR MEMBERSHIP IN WARRANTIES TO THE AMCI PARTIES OR THE COMPANY (COLLECTIVELY, REGARDING THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR PROBABLE SUCCESS OR PROFITABILITY OF THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS BUSINESS FORMED PURSUANT TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
Sources: Contribution Agreement (Alpha Natural Resources, Inc.)
No Other Representations. NO EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY MADE TO BUYER IN THIS AGREEMENT OR IN ANY ANCILLARY AGREEMENT, NEITHER THE MEMBERS, THE COMPANY ENTITIES, ANY SUBSIDIARIES THEREOF OR, ANY MEMBER THEREOF, ANY AFFILIATE OF ANY SUCH MEMBER NOR ANY OTHER PERSON HAS HAVE MADE OR ARE MAKING ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) WITH RESPECT TO THE FEDERALBUSINESS, STATEANY SUBSIDIARIES THEREOF, LOCAL ANY MEMBER THEREOF, THEIR RESPECTIVE BUSINESSES OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OF THE ANCILLARY AGREEMENTS, AND THE "TAX REPRESENTATIONS") MEMBERS, AND COMPANY ENTITIES HEREBY EXPRESSLY DISCLAIM ANY OTHER REPRESENTATIONS OR (II) ANY PROJECTIONSWARRANTIES, CASH FLOWSWHETHER IMPLIED OR MADE BY THE MEMBERS, POTENTIAL PROFITCOMPANY ENTITIES, OR YIELDS FROMANY MEMBER THEREOF OR ANY OF THEIR RESPECTIVE OFFICERS, PERFORMANCE OF MANAGERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES, AGENTS, CONSULTANTS OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")REPRESENTATIVES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE TO BUYER IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING IN ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS ANCILLARY AGREEMENT, EACH MEMBER OF THE MEMBERS AND COMPANY ENTITIES HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST OR INFORMATION MADE, COMMUNICATED OR FURNISHED (INCLUDINGORALLY OR IN WRITING) TO BUYER OR ANY AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, WITHOUT LIMITATIONINFORMATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF PROJECTION OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT ADVICE THAT MAY HAVE AT BEEN OR MAY BE PROVIDED TO BUYER OR ANY TIMEAFFILIATES OR REPRESENTATIVES BY ANY MANAGER, NOW OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, PARTNER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF THE MEMBERS, COMPANY ENTITIES, OR ANY OF THEIR MEMBERS OR SHAREHOLDERS, OR ANY OF THEIR RESPECTIVE AFFILIATES). THE MEMBERS, AND COMPANY ENTITIES MAKE NO REPRESENTATIONS OR WARRANTIES TO BUYER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THEIR RESPECTIVE BUSINESS, IN EACH CASE, IN THE FUTURE. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, TO ASSERT A CLAIM THAT NOTHING IN THIS SECTION 3.1 SHALL PREVENT ANY TAX REPRESENTATIONSINDEMNIFIED PARTY FROM BRINGING AN ACTION RELATING TO, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBERMEMBERS’ LIABILITY FOR, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWFRAUD.
Appears in 1 contract
No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE V, ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF BUYER OR ANY OTHER PERSON MAKES, AND BUYER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS THAT HAVE BEEN MADE AVAILABLE TO SELLER OR ANY OF SELLER’S REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS BY THE MANAGEMENT OF BUYER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY SELLER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE V, THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY BUYER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF BUYER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY SELLER OR AFFILIATE OF SELLER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM TRANSACTIONS CONTEMPLATED HEREBY OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHEREBY.
Appears in 1 contract
No Other Representations. EACH PARTY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV OR ARTICLE V (AS MODIFIED BY THE BLUE DISCLOSURE SCHEDULE OR THE GREEN DISCLOSURE SCHEDULE, AS APPLICABLE), NONE OF THE PARTIES OR ANY OTHER PERSON MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO BLUE, GREEN OR THEIR RESPECTIVE SUBSIDIARIES OR THE TRANSACTIONS. EACH PARTY HEREBY DISCLAIMS, AND SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE DISCLAIMER OF, ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY A PARTY OR ANY OF ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY SUCH OTHER REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO ANY PARTY OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO ANY OF THEM). EACH PARTY ACKNOWLEDGES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS, EACH OF THE PARTIES HAS RELIED ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, EACH OF THE PARTIES SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NO PERSON PARTY MAKES, NOR HAS MADE MADE, ANY REPRESENTATION OR WARRANTY CONCERNING WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO THE OTHER PARTY OR ITS AFFILIATES OR REPRESENTATIVES. EACH PARTY HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES, FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE OTHER, ITS STOCKHOLDERS, AFFILIATES OR ANY OFFICER, DIRECTOR, MANAGER, MEMBER, EMPLOYEE, AGENT, CONSULTANT OR REPRESENTATIVE OF ANY OF THE FOREGOING AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (IINCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, AND ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED HEREUNDER) AND THE TRANSACTIONS, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN LAW OR OTHERWISE (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONSRIGHT, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE WHETHER ARISING AT ANY TIME, NOW LAW OR IN THE FUTUREEQUITY, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONSSEEK INDEMNIFICATION, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY OTHER PERSON RECOURSE OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTERESTREMEDY, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"MAY ARISE UNDER COMMON LAW), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
No Other Representations. NO ▇▇▇▇▇ UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE IV (AS MODIFIED BY THE DISCLOSURE SCHEDULES), NEITHER SELLERS NOR ANY OTHER PERSON HAS MADE OR MAKES ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALWARRANTY, STATEEITHER WRITTEN OR ORAL, LOCAL AT LAW OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO IN EQUITY, IN RESPECT OF EACH SELLER OR ANY PERSON OF THE TRANSACTIONSITS BUSINESSES, ACTIONS ASSETS, PROPERTIES OR EVENTS LIABILITIES (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE BUSINESS, THE PURCHASED ASSETS AND THE ASSUMED LIABILITIES), THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYOR ANY OTHER TRANSACTION DOCUMENT OR ANY OTHER RIGHTS OR OBLIGATIONS TO BE TRANSFERRED HEREUNDER OR THEREUNDER OR PURSUANT HERETO OR THERETO, EACH SELLER’S OR ANY OF ITS BUSINESSES’, ASSETS’, PROPERTIES’ OR LIABILITIES’, INCLUDING THE BUSINESS, THE "TAX REPRESENTATIONS"PURCHASED ASSETS’ AND THE ASSUMED LIABILITIES’, CONDITION (FINANCIAL OR OTHERWISE), FUTURE OPERATIONS OR FINANCIAL RESULTS, ESTIMATES, PROJECTIONS, FORECASTS, PROBABILITY OF SUCCESS, PROFITABILITY, PLANS OR PROSPECTS (INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR THE REASONABLENESS OF THE ASSUMPTIONS UNDERLYING SUCH ESTIMATES, PROJECTIONS, FORECASTS, PROBABILITY OF SUCCESS, PROFITABILITY, PLANS OR PROSPECTS) OR THE ACCURACY, COMPLETENESS, ABSENCE OR OMISSION OF ANY INFORMATION REGARDING EACH SELLER, THE BUSINESS, THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES (IIINCLUDING THE HISTORICAL OR FUTURE FINANCIAL CONDITION, RESULTS OF OPERATIONS AND PROJECTED OPERATIONS THEREOF) PROVIDED OR MADE AVAILABLE TO BUYER OR ANY PROJECTIONSOF ITS AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES; AND, CASH FLOWSIN ENTERING INTO THIS AGREEMENT, POTENTIAL PROFITBUYER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON AND IS NOT RELYING ON ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT (WHETHER WRITTEN OR ORAL) MADE BY, OR YIELDS FROM, PERFORMANCE ON BEHALF OF EACH SELLER OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELYRELATING TO SUCH SELLER, THE "ECONOMIC REPRESENTATIONS"). BUSINESS, THE PURCHASED ASSETS OR THE ASSUMED LIABILITIES, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWARTICLE IV.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hydrofarm Holdings Group, Inc.)
No Other Representations. NO PERSON HAS EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ARTICLE III AND THIS ARTICLE IV (AS MODIFIED BY THE DISCLOSURE SCHEDULES), NONE OF THE SELLER, NOR ANY OF ITS AFFILIATES OR REPRESENTATIVES, MAKE AND HAVE MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) IN CONNECTION WITH THE FEDERALCONTEMPLATED TRANSACTIONS AND EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, STATEEXPRESS OR IMPLIED, LOCAL WHETHER MADE BY THE SELLER, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, PARTNERS, MANAGERS, EMPLOYEES, AGENTS OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES REPRESENTATIVES, AS TO ANY PERSON THE CONDITION, VALUE, PROBABLE SUCCESS, PROFITABILITY OR QUALITY OF THE TRANSACTIONSTHEIR RESPECTIVE BUSINESSES OR ASSETS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELYAND, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONSEXCEPT AS SET FORTH IN ARTICLE III AND ARTICLE IV, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF PARTICULAR PURPOSE WITH RESPECT TO THEIR ASSETS, ANY OTHER REPRESENTATIONSPART THEREOF, THE MEMBER TAKING THE ACTION (ORWORKMANSHIP THEREOF, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES ABSENCE OF AN INTEREST OF A MEMBERANY DEFECTS THEREIN, IMMEDIATELY UPON DEMANDWHETHER LATENT OR PATENT, FOR ANY AND ALL LOSSESIT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESWHERE IS” ON THE CLOSING DATE, AND COSTS IN THEIR PRESENT CONDITION, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO BUYER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH ANY DOCUMENTATION OR AS A RESULT OF SUCH ACTION OTHER INFORMATION (COLLECTIVELY, "COSTS"INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tronc, Inc.)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS ARTICLE V OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER II NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER II MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. BLOCKER II ACKNOWLEDGES THAT, (A) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE III OR ANY OTHER TRANSACTION DOCUMENT, NONE OF THP, ITS SUBSIDIARIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF THP OR ITS SUBSIDIARIES MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (B) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE IV, ARTICLE VI, OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER I, BLOCKER I SELLER, NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER I OR BLOCKER I SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, (C) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BLOCKER II SELLER NOR ANY OTHER PERSON ACTING ON BEHALF OF BLOCKER II SELLER MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED, AND (D) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VIII OR ANY OTHER TRANSACTION DOCUMENT, NONE OF BUYER, MERGER SUB NOR ANY OTHER PERSON ACTING ON BEHALF OF BUYER OR MERGER SUB MAKES ANY REPRESENTATION OR WARRANTY TO THE PARTIES, EXPRESS OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NOTHING IN THIS SECTION 5.11 SHALL IN ANY WAY LIMIT ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEESTRANSACTION DOCUMENTS, AND COSTS (II) THE PROVISIONS OF RESPONSE, NEGOTIATIONTHIS SECTION 5.11 SHALL NOT, AND DEFENSESHALL NOT BE DEEMED OR CONSTRUED TO, INCURRED BY THOSE MEMBERS IN CONNECTION WITH WAIVE, LIMIT OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND RELEASE ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWCLAIMS RELATING TO FRAUD.
Appears in 1 contract
Sources: Merger and Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT AGREEMENT, NEITHER SELLERS NOR ANY OTHER PERSON MAKES ANY EXPRESS OR CONTEMPLATED BYIMPLIED REPRESENTATION OR WARRANTY ON BEHALF OF SELLERS, AND SELLERS DISCLAIM ANY SUCH REPRESENTATION OR WARRANTY, WHETHER BY SELLERS OR ANY OF THEIR RESPECTIVE OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, MEMBERS OR REPRESENTATIVES OR ANY OTHER PERSON, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR WARRANTY AS TO THE COMPANY’S BUSINESS, ASSETS OR OPERATIONS, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO PURCHASER, ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER PERSON OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO THE FOREGOING. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PURCHASER EXPRESSLY UNDERSTANDS AND AGREES THAT SELLERS HAVE NOT MADE AND DO NOT AND WILL NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION, EXPENSES, LEGAL STATUS, VALUE, UTILITY OR POTENTIAL OF THE COMPANY’S ASSETS, ITS BUSINESS, OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSOR THING AFFECTING OR RELATING TO THE COMPANY’S ASSETS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER ITS BUSINESS OR THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS WARRANTIES OF HABITABILITY, SUITABILITY, MERCHANTABILITY AND/OR A CONDITION FITNESS FOR A PARTICULAR PURPOSE) WHICH MIGHT BE PERTINENT IN CONSIDERING WHETHER TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS PURCHASE THE STOCK OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING TO MAKE AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
No Other Representations. NO (a) SELLERS UNDERSTAND, ACKNOWLEDGE AND AGREE THAT THE REPRESENTATIONS AND WARRANTIES OF BUYER AND PARENT EXPRESSLY SET FORTH IN ARTICLE V AND SECTION 12.20(B) OF THIS AGREEMENT, RESPECTIVELY, AND IN THE OTHER APPLICABLE TRANSACTION DOCUMENTS CONSTITUTE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF ANY KIND OF BUYER, THE PARENT, ANY OF THEIR AFFILIATES AND ANY OF THEIR RESPECTIVE REPRESENTATIVES OR ANY OTHER PERSON HAS TO SELLERS, THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES WITH RESPECT TO BUYER, PARENT, ANY OF THEIR RESPECTIVE AFFILIATES, THEIR RESPECTIVE BUSINESSES, OPERATIONS, ASSETS, LIABILITIES, FINANCIAL CONDITION, RESULTS OF OPERATIONS, FUTURE OPERATING OR FINANCIAL RESULTS, ESTIMATES, PROJECTIONS, FORECASTS, PLANS OR PROSPECTS (INCLUDING THE REASONABLENESS OF THE ASSUMPTIONS UNDERLYING SUCH ESTIMATES, PROJECTIONS, FORECASTS, PLANS OR PROSPECTS), THIS AGREEMENT, THE TRANSACTIONS, OR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING BUYER, PARENT OR ANY OF THEIR RESPECTIVE AFFILIATES, THEIR RESPECTIVE BUSINESSES, OR ANY OTHER MATTER, FURNISHED OR MADE AVAILABLE TO (OR OTHERWISE ACQUIRED BY) SELLERS, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES OR ANY REPRESENTATION OTHER PERSON, INCLUDING WITH RESPECT TO ANY ERRORS THEREIN OR WARRANTY CONCERNING OMISSIONS THEREFROM, OR AS TO THE FUTURE REVENUE, PROFITABILITY OR SUCCESS OF BUYER, PARENT, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE BUSINESSES (I) INCLUDING THE FEDERALFINANCIAL INFORMATION, STATE, LOCAL PROJECTIONS OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO FORWARD-LOOKING STATEMENTS OF BUYER, PARENT, ANY PERSON OF THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE BUSINESSES, IN EACH CASE, IN EXPECTATION OR FURTHERANCE OF THE TRANSACTIONS), ACTIONS AND SELLERS IRREVOCABLY UNDERSTAND, ACKNOWLEDGE AND AGREE THAT ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND OR EVENTS NATURE, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, WHETHER WRITTEN OR ORAL, STATUTORY OR OTHERWISE, ARE SPECIFICALLY AND EXPRESSLY DISCLAIMED BY BUYER, PARENT, THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES.
(INCLUDING b) NONE OF SELLERS OR ANY OF THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE REPRESENTATIVES HAS RELIED ON, AND NONE ARE RELYING ON, ANY REPRESENTATIONS OR WARRANTIES FROM THE ALLOCATION BUYER, THE PARENT OR ANY OF TAX ITEMS) THAT MAY ARISE OUT THEIR AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR BE CONTEMPLATED BY ANY OTHER PERSON IN DETERMINING TO ENTER INTO THIS AGREEMENT (COLLECTIVELYAND THE APPLICABLE TRANSACTION DOCUMENTS, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED MADE IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"), NO PERSON IS MAKING ANY REPRESENTATION OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBERARTICLE V AND SECtion 12.20(B) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO OF THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
Appears in 1 contract
Sources: Share Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
No Other Representations. NO PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 3 (AS MODIFIED BY THE SELLER DISCLOSURE SCHEDULES) AND IN ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT, NEITHER THE SELLER, A SELLER RELATED PARTY NOR ANY OTHER PERSON MAKE, OR HAVE MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPANY GROUP, THE BUSINESS OF THE COMPANY GROUP OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES TO THE SELLER AND THE SELLER RELATED PARTIES’ EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE SELLER OR THE SELLER RELATED PARTIES OR THEIR RESPECTIVE REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PURCHASER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES BY SELLER, ANY SELLER RELATED PARTY OR ANY OF THEIR REPRESENTATIVES). PURCHASER ACKNOWLEDGES AND AGREES THAT IT HAS CONDUCTED TO ITS SATISFACTION ITS OWN INDEPENDENT INVESTIGATION OF THE CONDITION, OPERATIONS, LIABILITIES AND BUSINESS OF THE COMPANY GROUP AND, IN MAKING ITS DETERMINATION TO PROCEED WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, PURCHASER RELIED SOLELY ON THE RESULTS OF ITS OWN INDEPENDENT INVESTIGATION AND THE EXPRESS REPRESENTATIONS AND WARRANTIES OF THE SELLER SET FORTH IN ARTICLE 3 (AS MODIFIED BY THE SELLER DISCLOSURE SCHEDULES) AND IN ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT. IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE SELLER DOES NOT MAKE, NOR HAS ANY OTHER PERSON MADE, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY FINANCIAL PROJECTION OR FORECAST DELIVERED TO PURCHASER OR ITS EQUITYHOLDERS, INCORPORATORS, CONTROLLING PERSONS, LIMITED OR GENERAL PARTNERS, MEMBERS, AFFILIATES OR REPRESENTATIVES WITH RESPECT TO THE PERFORMANCE OF THE COMPANY GROUP OR THE BUSINESS OF THE COMPANY GROUP WHETHER BEFORE, ON OR AFTER THE CLOSING DATE. PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT THE SELLER DOES NOT MAKE, NOR HAS MADE (OR HAS AUTHORIZED ANY OTHER PERSON TO MAKE ON THEIR BEHALF), ANY REPRESENTATION OR WARRANTY CONCERNING TO PURCHASER REGARDING THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY GROUP OR THE BUSINESS OF THE COMPANY GROUP. PURCHASER SHALL ACQUIRE THE COMPANY GROUP (I) WITHOUT ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO SAMPLES, OR CONDITION OF THE COMPANY GROUP, ANY ASSETS OR ANY PART THEREOF AND (II) IN AN “AS IS” CONDITION AND ON A “WHERE IS” BASIS, EXCEPT, IN EACH CASE, FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE 3 (AS MODIFIED BY THE SELLER DISCLOSURE SCHEDULES) AND IN ANY CERTIFICATE DELIVERED PURSUANT TO THIS AGREEMENT. WITH THE EXCEPTION OF ANY CLAIM BY PURCHASER FOR WILLFUL MISREPRESENTATIONS WHICH WOULD CONSTITUTE COMMON LAW FRAUD UNDER DELAWARE LAW, PURCHASER HEREBY WAIVES, ON BEHALF OF ITSELF AND ITS AFFILIATES (INCLUDING, AFTER THE CLOSING, THE COMPANY GROUP), FROM AND AFTER THE CLOSING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND ALL RIGHTS, CLAIMS AND CAUSES OF ACTION IT MAY HAVE AGAINST THE SELLER, ANY OF THE SELLER RELATED PARTIES AND ANY OF THEIR REPRESENTATIVES, AND AGREES NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, RELATING TO THE OPERATION OF THE COMPANY GROUP OR THE BUSINESS OF THE COMPANY GROUP OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN, THE SCHEDULES AND EXHIBITS HERETO AND ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED IN CONNECTION HEREWITH) AND THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING UNDER OR BASED UPON ANY FEDERAL, STATE, LOCAL OR OTHER TAX FOREIGN STATUTE, LAW, ORDINANCE, RULE OR REGULATION OR OTHERWISE (INCLUDING PROPERTY TAXANY RIGHT, WHETHER ARISING AT LAW OR IN EQUITY, TO SEEK INDEMNIFICATION, CONTRIBUTION, COST RECOVERY, DAMAGES, OR ANY OTHER RECOURSE OR REMEDY, INCLUDING AS MAY ARISE UNDER COMMON LAW). FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THIS SECTION 6.4 NO ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD-PARTY CLAIM OR LEGAL PROCEEDING OF ANY KIND (WHETHER AT LAW, IN EQUITY, IN CONTRACT, IN TORT OR OTHERWISE) CONSEQUENCES TO SHALL BE BROUGHT OR MAINTAINED BY PURCHASER OR ANY PERSON OF ITS AFFILIATES (INCLUDING, AFTER THE CLOSING, THE COMPANY GROUP) AGAINST THE SELLER, ANY SELLER RELATED PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES, AND NO RECOURSE SHALL BE SOUGHT OR GRANTED AGAINST ANY OF THEM, BY VIRTUE OF OR BASED UPON (I) ANY ALLEGED MISREPRESENTATION OR INACCURACY IN OR BREACH OF ANY OF THE TRANSACTIONSREPRESENTATIONS, ACTIONS WARRANTIES OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF COVENANTS SET FORTH OR BE CONTEMPLATED BY CONTAINED IN THIS AGREEMENT (COLLECTIVELYAGREEMENT, ANY CERTIFICATE, INSTRUMENT, OPINION OR OTHER DOCUMENTS DELIVERED HEREUNDER, THE "TAX REPRESENTATIONS") EXHIBITS AND DISCLOSURE SCHEDULE HERETO OR THE SUBJECT MATTER HEREOF OR THEREOF, OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE THE BUSINESS OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELYGROUP, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR OWNERSHIP, OPERATION, MANAGEMENT, USE OR CONTROL OF THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT COMPANY GROUP AND/OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYBUSINESS OF THE COMPANY GROUP, "EXPRESS REPRESENTATIONS")ANY OF THEIR ASSETS, NO PERSON IS MAKING ANY REPRESENTATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR WARRANTY AS TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONS, OTHER THAN THE EXPRESS REPRESENTATIONS, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS ACTIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT OMISSIONS AT OR PRIOR TO THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTCLOSING DATE, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) EXCEPT THAT PURCHASER SHALL NOT BE PRECLUDED FROM BRINGING ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY WILLFUL MISREPRESENTATIONS WHICH WOULD CONSTITUTE COMMON LAW FRAUD UNDER DELAWARE LAW.
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Sources: Membership Interest Purchase and Sale Agreement (NuStar Energy L.P.)
No Other Representations. NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO ANY PARTY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION (INCLUDING ANY FINANCIAL PROJECTIONS OR OTHER SUPPLEMENTAL DATA), EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV, ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ANCILLARY AGREEMENTS, NONE OF BUYER OR ANY OTHER PERSON MAKES, AND BUYER EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, INCLUDING AS TO THE MATERIALS RELATING TO THE BUSINESS AND AFFAIRS THAT HAVE BEEN MADE AVAILABLE TO SELLER OR ANY OF SELLER’S REPRESENTATIVES OR IN ANY PRESENTATION OF THE BUSINESS BY THE MANAGEMENT OF BUYER OR OTHERS IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE ANCILLARY AGREEMENTS, AND NO PERSON HAS STATEMENT CONTAINED IN ANY OF SUCH MATERIALS OR MADE IN ANY SUCH PRESENTATION SHALL BE DEEMED A REPRESENTATION OR WARRANTY CONCERNING (I) THE FEDERALHEREUNDER OR OTHERWISE OR DEEMED TO BE RELIED UPON BY SELLER IN EXECUTING, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY DELIVERING AND PERFORMING THIS AGREEMENT (COLLECTIVELYAGREEMENT, THE "TAX REPRESENTATIONS") ANCILLARY AGREEMENTS OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, THE TRANSACTIONS CONTEMPLATED HEREBY OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS")THEREBY. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED SET FORTH IN THIS AGREEMENT OR CONTEMPLATED BYARTICLE IV, THIS AGREEMENT ANY CERTIFICATES REQUIRED TO BE DELIVERED IN CONNECTION WITH THE CLOSING OR THE ASSET PURCHASE AGREEMENT (COLLECTIVELYANCILLARY AGREEMENTS, "EXPRESS REPRESENTATIONS")IT IS UNDERSTOOD THAT ANY COST ESTIMATES, NO PERSON IS MAKING PROJECTIONS OR OTHER PREDICTIONS, ANY REPRESENTATION DATA, ANY FINANCIAL INFORMATION OR WARRANTY AS ANY MEMORANDA OR OFFERING MATERIALS OR PRESENTATIONS, INCLUDING ANY OFFERING MEMORANDUM OR SIMILAR MATERIALS MADE AVAILABLE BY BUYER ARE NOT AND SHALL NOT BE DEEMED TO BE OR TO INCLUDE REPRESENTATIONS OR WARRANTIES OF BUYER OR ANY OTHER MATTER (ALL SUCH REPRESENTATIONSPERSON, OTHER THAN THE EXPRESS REPRESENTATIONSAND ARE NOT AND SHALL NOT BE DEEMED TO BE RELIED UPON BY SELLER OR AFFILIATE OF SELLER IN EXECUTING, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS DELIVERING OR OTHER REPRESENTATIONS. CONSISTENT WITH THE FOREGOING AND AS A MATERIAL INDUCEMENT TO THE OTHER MEMBERS TO ENTER INTO PERFORMING THIS AGREEMENT, EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER OR ANY OTHER PERSON OR TO SEEK DAMAGES, A RIGHT OF OFFSET OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (ANCILLARY AGREEMENTS OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM TRANSACTIONS CONTEMPLATED HEREBY OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WITH RESPECT TO ANY OTHER REPRESENTATIONS, THE MEMBER TAKING THE ACTION (OR, IN THE EVENT OF ACTION TAKEN BY A TRANSFEREE OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, FOR ANY AND ALL LOSSES, COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, LEGAL FEES, ACCOUNTING FEES, CONSULTING FEES, AND COSTS OF RESPONSE, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH OR AS A RESULT OF SUCH ACTION (COLLECTIVELY, "COSTS"), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAWTHEREBY.
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No Other Representations. NO PERSON HAS MADE ANY REPRESENTATION OR WARRANTY CONCERNING (Ia) THE FEDERAL, STATE, LOCAL OR OTHER TAX (INCLUDING PROPERTY TAX) CONSEQUENCES TO ANY PERSON OF THE TRANSACTIONS, ACTIONS OR EVENTS (INCLUDING THE ALLOCATION OF TAX ITEMS) PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT MAY ARISE OUT OF OR BE CONTEMPLATED BY THIS AGREEMENT (COLLECTIVELY, THE "TAX REPRESENTATIONS") OR (II) ANY PROJECTIONS, CASH FLOWS, POTENTIAL PROFIT, OR YIELDS FROM, PERFORMANCE OF OR ECONOMIC CONSEQUENCES OF AN INVESTMENT OR MEMBERSHIP IN THE COMPANY (COLLECTIVELY, THE "ECONOMIC REPRESENTATIONS"). EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED CONTAINED IN THIS AGREEMENT OR CONTEMPLATED BY, THIS AGREEMENT OR ARTICLE V (AS MODIFIED BY THE ASSET PURCHASE AGREEMENT (COLLECTIVELY, "EXPRESS REPRESENTATIONS"SCHEDULES HERETO), NO NEITHER THE COMPANY NOR ANY OTHER PERSON IS MAKING MAKES, OR HAS MADE, ANY OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY AS WITH RESPECT TO THE COMPANY, ITS SUBSIDIARIES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE TO THE COMPANY'S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONS OR WARRANTIES, WHETHER MADE BY THE COMPANY OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF ALL LIABILITY AND RESPONSIBILITY FOR ANY REPRESENTATION, WARRANTY, PROJECTION, FORECAST, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PARENT, MERGER SUB OR THEIR AFFILIATES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE COMPANY OR ANY OF ITS AFFILIATES). IN FURTHERANCE OF THE FOREGOING, AND NOT IN LIMITATION THEREOF, PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY MAKES NO, AND HAS NOT MADE ANY, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY OTHER MATTER (ALL SUCH REPRESENTATIONSFINANCIAL PROJECTION OR FORECAST DELIVERED TO PARENT WITH RESPECT TO THE PERFORMANCE OF THE COMPANY EITHER BEFORE OR AFTER THE CLOSING DATE. PARENT AND MERGER SUB SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE COMPANY MAKES NO, OTHER THAN THE EXPRESS REPRESENTATIONSAND HAS NOT MADE ANY, SHALL BE REFERRED TO HEREIN AS THE "OTHER REPRESENTATIONS"). EACH MEMBER (INCLUDING, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) ACKNOWLEDGES THAT NO PERSON HAS MADE ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS. CONSISTENT WITH WARRANTIES TO PARENT OR MERGER SUB REGARDING THE FOREGOING PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY.
(b) THE COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE VI (AS A MATERIAL INDUCEMENT TO MODIFIED BY THE OTHER MEMBERS TO ENTER INTO THIS AGREEMENTSCHEDULES HERETO), EACH MEMBER (INCLUDINGNONE OF PARENT, WITHOUT LIMITATION, EACH SUBSTITUTED MEMBER AS A CONDITION TO BECOMING A SUBSTITUTED MEMBER) HEREBY WAIVES (ON BEHALF OF ITSELF, HIMSELF OR HERSELF AND ON BEHALF OF ALL ASSIGNEES AND ALL HOLDERS) ANY AND ALL RIGHTS HE, SHE OR IT MAY HAVE AT ANY TIME, NOW OR IN THE FUTURE, TO ASSERT A CLAIM THAT ANY TAX REPRESENTATIONS, ECONOMIC REPRESENTATIONS OR OTHER REPRESENTATIONS HAVE BEEN MADE BY OR ON BEHALF OF ANY MEMBER MERGER SUB OR ANY OTHER PERSON MAKES, OR TO SEEK DAMAGESHAS MADE, A RIGHT OF OFFSET ANY OTHER EXPRESS OR OTHER RELIEF BASED UPON AN ALLEGED BREACH OR INACCURACY OF ANY TAX REPRESENTATION, ECONOMIC IMPLIED REPRESENTATION OR OTHER REPRESENTATIONS. IN THE EVENT ANY MEMBER (OR THE TRANSFEREE OF ANY INTEREST, INCLUDING UNITS, OF THE MEMBER IN THE COMPANY) TAKES ANY ACTION TO ASSERT ANY SUCH CLAIM OR SEEK ANY SUCH DAMAGES, RIGHT OF OFFSET OR OTHER RELIEF WARRANTY WITH RESPECT TO PARENT OR MERGER SUB, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THE COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREE TO PARENT'S AND MERGER SUB'S EXPRESS DISAVOWAL AND DISCLAIMER OF ANY OTHER REPRESENTATIONSREPRESENTATIONS OR WARRANTIES, THE MEMBER TAKING THE ACTION (ORWHETHER MADE BY PARENT, IN THE EVENT MERGER SUB OR ANY OF ACTION TAKEN BY A TRANSFEREE THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES, AND OF AN INTEREST OF A MEMBER, SUCH MEMBER) SHALL REIMBURSE THE OTHER MEMBERS ALL LIABILITY AND THE TRANSFEREES OF AN INTEREST OF A MEMBER, IMMEDIATELY UPON DEMAND, RESPONSIBILITY FOR ANY AND ALL LOSSESREPRESENTATION, COSTS AND EXPENSESWARRANTY, INCLUDINGPROJECTION, WITHOUT LIMITATIONFORECAST, LEGAL FEESSTATEMENT, ACCOUNTING FEESOR INFORMATION MADE, CONSULTING FEESCOMMUNICATED, AND COSTS OR FURNISHED (ORALLY OR IN WRITING) TO PARENT, MERGER SUB OR THEIR AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO THE COMPANY OR ITS AFFILIATES BY ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF RESPONSEPARENT, NEGOTIATION, AND DEFENSE, INCURRED BY THOSE MEMBERS IN CONNECTION WITH MERGER SUB OR AS A RESULT ANY OF SUCH ACTION (COLLECTIVELY, "COSTS"THEIR AFFILIATES), AND ANY COSTS NOT SO PAID UPON DEMAND SHALL BEAR INTEREST, FROM THE DATE OF DEMAND UNTIL PAID, AT THE HIGHEST RATE PERMITTED BY APPLICABLE USURY LAW.
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