HAS BEEN IN CONFORMITY WITH ALL APPLICABLE
MATERIAL CONTRACTUAL COMMITMENTS AND ALL EXPRESS AND IMPLIED WARRANTIES, AND THE
BUSINESS HAS NO LIABILITY (AND THERE IS NO BASIS FOR ANY PRESENT OR FUTURE
PROCEEDING AGAINST ANY OF THEM GIVING RISE TO ANY LIABILITY) IN EXCESS OF
$10,000 FOR REPLACEMENT OR REPAIR THEREOF OR OTHER DAMAGES IN CONNECTION
THEREWITH, SUBJECT ONLY TO THE RESERVE FOR PRODUCT WARRANTY CLAIMS SET FORTH ON
THE FACE OF THE INTERIM BUSINESS BALANCE SHEETS AS ADJUSTED FOR THE PASSAGE OF
TIME THROUGH THE CLOSING DATE IN ACCORDANCE WITH THE PAST CUSTOM AND PRACTICE OF
THE BUSINESS.
NO PRODUCT MANUFACTURED, SOLD, LEASED, OR DELIVERED BY THE
BUSINESS IS SUBJECT TO ANY GUARANTY, WARRANTY, OR OTHER INDEMNITY BEYOND THE
APPLICABLE STANDARD TERMS AND CONDITIONS OF SALE OR LEASE.
SECTION 3.25 OF THE
DISCLOSURE SCHEDULE INCLUDES COPIES OF THE STANDARD TERMS AND CONDITIONS OF SALE
OR LEASE FOR THE BUSINESS (CONTAINING APPLICABLE GUARANTY, WARRANTY, AND
INDEMNITY PROVISIONS).
SELLER HAS NO OBLIGATION TO ANY PERSON TO MAINTAIN,
MODIFY, IMPROVE OR UPGRADE ANY OF THE PRODUCTS. THE TECHNICAL DOCUMENTATION
INCLUDES ALL TECHNICAL DRAWINGS, PRODUCT SPECIFICATIONS, MANUFACTURING
INSTRUCTIONS, SCHEMATICS AND OTHER DESIGN AND
47
MANUFACTURING DOCUMENTATION RELATED TO THE PRODUCTS THAT MAY BE NECESSARY TO
RENDER SUCH MATERIALS UNDERSTANDABLE AND USABLE.
3.26
PRODUCT LIABILITY.
THE BUSINESS HAS NO LIABILITY
(AND THERE IS NO BASIS FOR ANY PRESENT OR FUTURE PROCEEDING AGAINST ANY THE
BUSINESS GIVING RISE TO ANY LIABILITY) ARISING OUT OF ANY INJURY TO INDIVIDUALS
OR PROPERTY AS A RESULT OF THE OWNERSHIP, POSSESSION, OR USE OF ANY PRODUCT
MANUFACTURED, SOLD, LEASED, OR DELIVERED BY THE BUSINESS.
3.27
EXPORT REGULATION.
PARENT IS REGISTERED WITH THE
U.S. DEPARTMENT OF STATE OFFICE OF DEFENSE TRADE CONTROLS PURSUANT TO THE
INTERNATIONAL TRAFFIC IN ARMS REGULATIONS, TITLE 22, PARTS 120 THROUGH 130 OF
THE CODE OF FEDERAL REGULATIONS ("ITAR") AND IS IN COMPLIANCE WITH SUCH
REGISTRATION AND THE ITAR.
3.28
DISCLOSURE.
NO REPRESENTATION OR WARRANTY OF
SELLER IN THIS AGREEMENT AND NO STATEMENT IN THE DISCLOSURE SCHEDULE OMITS TO
STATE A MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS HEREIN OR THEREIN, IN
LIGHT OF THE CIRCUMSTANCES IN WHICH THEY WERE MADE, NOT MISLEADING.
THERE IS NO
FACT KNOWN TO SELLER THAT HAS SPECIFIC APPLICATION TO THE BUSINESS (OTHER THAN
GENERAL ECONOMIC OR INDUSTRY CONDITIONS) AND THAT MATERIALLY ADVERSELY AFFECTS
OR, MATERIALLY THREATENS, THE ASSETS, BUSINESS, PROSPECTS, FINANCIAL CONDITION,
OR RESULTS OF OPERATIONS OF THE BUSINESS THAT HAS NOT BEEN SET FORTH IN THIS
AGREEMENT OR THE DISCLOSURE SCHEDULE.
3.29
BROKERS OR FINDERS.
EXCEPT AS SET FORTH ON
SECTION 3.29 OF THE DISCLOSURE SCHEDULE, NEITHER SELLER, XCEL JAPAN NOR THEIR
AGENTS HAVE INCURRED ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR BROKERAGE OR
FINDERS' FEES OR AGENTS' COMMISSIONS OR OTHER SIMILAR PAYMENT IN CONNECTION WITH
THIS AGREEMENT.
AT THE CLOSING, NEITHER SELLER NOR XCEL JAPAN SHALL HAVE ANY
LIABILITY FOR OR SHALL HAVE PAID ANY COSTS, FEES OR EXPENSES INCURRED BY SELLER
OR XCEL JAPAN OR TO WHICH IT IS OBLIGATED TO PAY IN CONNECTION WITH THE
NEGOTIATION,