(other than Purchaser) to sell any of the Purchased
Assets, or to effect any merger, consolidation or other reorganization of
Seller, or to enter into any agreement with respect thereto.
3.12. Certain Fees.
Except for the fees and expenses of Merriman, Curhan, Ford
& Co., Seller has not incurred any liability for any investment banking fees,
financial advisory fees, brokerage fees, finders' fees, or other similar fees in
connection with this Agreement or the Transactions.
Purchaser shall have no
responsibility to satisfy any liability of the Seller for any of the fees
described in this Section 3.12.
3.13. "AS IS" TRANSACTION.
PURCHASER HEREBY ACKNOWLEDGES AND AGREES THAT,
NOTWITHSTANDING THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS
SECTION 3, THE CONSENT OF A PARTY TO THE CLOSING SHALL CONSTITUTE A WAIVER BY
SUCH PARTY OF ANY CONDITIONS TO CLOSING NOT SATISFIED AS OF THE CLOSING DATE,
AND FOLLOWING CLOSING SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER RELATING TO THE PURCHASED ASSETS,
INCLUDING INCOME TO BE DERIVED OR EXPENSES TO BE INCURRED IN CONNECTION WITH THE
PURCHASED ASSETS, THE PHYSICAL CONDITION OF ANY PROPERTY COMPRISING A PART OF
THE PURCHASED ASSETS OR WHICH IS THE SUBJECT OF ANY LEASE OR CONTRACT TO BE
ASSIGNED TO PURCHASER AT THE CLOSING, THE ENVIRONMENTAL CONDITION OR ANY OTHER
MATTER RELATING TO THE PHYSICAL CONDITION OF ANY REAL PROPERTY OR IMPROVEMENTS,
THE ZONING OF ANY SUCH REAL PROPERTY OR IMPROVEMENTS, THE VALUE OF THE PURCHASED
ASSETS (OR ANY PORTION THEREOF), THE TRANSFERABILITY OF THE PURCHASED ASSETS,
THE TERMS, AMOUNT, VALIDITY OR ENFORCEABILITY OF ANY ASSUMED LIABILITIES, THE
TITLE OF THE PURCHASED ASSETS (OR ANY PORTION THEREOF), THE MERCHANTABILITY OR
FITNESS OF THE PERSONAL PROPERTY OR ANY OTHER PORTION OF THE PURCHASED ASSETS
FOR ANY PARTICULAR PURPOSE, OR ANY OTHER MATTER OR THING RELATING TO THE
PURCHASED ASSETS OR ANY PORTION THEREOF.
WITHOUT IN ANY WAY LIMITING THE
FOREGOING, SELLER HEREBY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO ANY PORTION OF THE
PURCHASED ASSETS.
PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER HAS CONDUCTED
AN INDEPENDENT INSPECTION AND INVESTIGATION OF THE PHYSICAL CONDITION OF THE
PURCHASED ASSETS AND ALL SUCH OTHER MATTERS RELATING TO OR AFFECTING THE
PURCHASED ASSETS AS PURCHASER DEEMED NECESSARY OR APPROPRIATE AND THAT IN
PROCEEDING WITH ITS ACQUISITION OF THE
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PURCHASED ASSETS, EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET
FORTH IN SECTION 3, PURCHASER IS DOING SO BASED SOLELY UPON SUCH INDEPENDENT
INSPECTIONS AND INVESTIGATIONS.
ACCORDINGLY, UPON THE CLOSING DATE, PURCHASER
WILL ACCEPT THE PURCHASED ASSETS AT THE CLOSING "AS IS," "WHERE IS," AND "WITH
ALL FAULTS."
4. Representations and Warranties of Purchaser.
Purchaser represents and
warrants to Seller as follows:
4.1. Organization.
Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all company powers and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business