replace, any products sold or delivered by Seller and its Subsidiaries in
connection with the Business at any time on or prior to the Closing Date beyond
the amounts reserved for warranty expense reflected in the Statement of Net
Assets.
(b) Schedule 4.24(b) sets forth a list of all (i) Products which have been
recalled, withdrawn or suspended (other than (x) Products discontinued or
suspended in the ordinary course of business or by reason of business decisions
made without regard to (1) concerns as to design or other inherent defect or
risk to the safety of the users thereof or (2) concerns of any Governmental Body
and (y) isolated instances with respect to
29
particular product units which are not representative of an entire product
category) since January 1, 2004, and (ii) proceedings pending against Seller and
its Subsidiaries at any time since January 1, 2004 (whether such proceeding have
since been completed or remain pending) seeking the recall, withdrawal,
suspension or seizure of any Products or seeking to enjoin Seller from engaging
in activities pertaining to any Products.
Section 4.25 Disclaimers of Seller.
EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY TRANSITION AGREEMENT,
(A) SELLER EXCLUDES AND DISCLAIMS ALL WARRANTIES, INCLUDING IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
BUSINESS OR THE PURCHASED ASSETS, (B) SELLER MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO THE CONFIDENTIAL INFORMATION MEMORANDUM, FINANCIAL SUPPLEMENT,
PRESENTATIONS, REPORTS, OR ANY FINANCIAL FORECASTS OR PROJECTIONS OR OTHER
INFORMATION FURNISHED BY SELLER OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
REPRESENTATIVES, (C) SELLER UNDERTAKES NO LIABILITY FOR ANY DAMAGE, LOSS,
EXPENSE OR CLAIM OR OTHER MATTER RELATING TO ANY CAUSE WHATSOEVER ARISING UNDER
OR PURSUANT HERETO (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OTHER TORT OR OTHERWISE) AND IN NO EVENT SHALL SELLER BE LIABLE FOR
SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES
RESULTING FROM ANY SUCH CAUSE; (D) SELLER SHALL NOT BE LIABLE FOR, AND PURCHASER
ASSUMES LIABILITY FOR, ALL PERSONAL INJURY AND PROPERTY DAMAGE CONNECTED WITH
ITS INVESTIGATION AND EXAMINATION OF THE PURCHASED ASSETS, THE HANDLING,
TRANSPORTATION, POSSESSION, PROCESSING, FURTHER MANUFACTURE OR OTHER USE OR
RESALE OF ANY OF THE PURCHASED ASSETS AFTER THE CLOSING DATE, WHETHER SUCH
PURCHASED ASSETS ARE USED OR RESOLD ALONE OR IN COMBINATION WITH OTHER ASSETS OR
MATERIALS, AND (E) PURCHASER ACKNOWLEDGES THAT EXCEPT AS PROVIDED IN THIS
AGREEMENT, THE PURCHASED ASSETS ARE BEING SOLD IN THEIR PRESENT STATE AND
CONDITION, "AS IS, WHERE IS," WITH ALL FAULTS, AND PURCHASER IS PURCHASING AND
ACQUIRING SUCH PURCHASED ASSETS ON THAT BASIS PURSUANT TO PURCHASER'S OWN
INVESTIGATION AND EXAMINATION AFTER HAVING BEEN PROVIDED WITH AN ADEQUATE
OPPORTUNITY AND ACCESS TO SUCH PURCHASED ASSETS TO COMPLETE SUCH INVESTIGATION
OR EXAMINATION.
Section 4.26 No Material Misstatements.
To Seller's Knowledge, this Agreement does not, and, when executed and
delivered at the Closing, the other Operative Documents to which such Seller is
a party and the documents or instruments listed under Section 3.2 relating to