Losses incurred by the Seller
Indemnitees with respect to each such Claim, IN EACH CASE REGARDLESS OF THE
NEGLIGENCE OR OTHER FAULT (OTHER THAN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE SELLER INDEMNITEES OR ANY EMPLOYEE OF ANY SUCH PERSON) OF THE SELLER
INDEMNITEES OR ANY EMPLOYEE OF ANY SUCH PERSON.
Section 5.6 Condition of Transferred Assets. In consummating the purchase and
the sale of the Transferred Assets contemplated hereunder, Buyer acknowledges
that it will become the owner of the Transferred Assets and Buyer accepts the
Transferred Assets in their AS-IS, WHERE-IS CONDITION WITH ALL FAULTS, WITHOUT
ANY EXPRESS OR IMPLIED COVENANT, WARRANTY AS TO TITLE, CONDITION (INCLUDING ANY
ENVIRONMENTAL CONDITION), MERCHANTABILITY, PERFORMANCE, FITNESS (BOTH GENERALLY
AND FOR ANY PARTICULAR PURPOSE) OR OTHERWISE (WHICH WARRANTIES SELLER HEREBY
EXPRESSLY DISCLAIMS), OR RECOURSE, OTHER THAN AS EXPRESSLY SET FORTH HEREIN.
Section 5.7 Independent Investigation. Buyer acknowledges and affirms that
(i) it has had full access to the extent it deems useful or necessary to all
information and materials made available by Seller and its representatives
during the course of Buyer's due diligence investigation of Seller, and (ii) it
has had access to the personnel, officers, professional advisors, operations and
records of Seller. As of the Closing, Buyer will have completed its independent
investigation, verification, analysis, review and evaluation of this Agreement,
the Other Agreements, the Transferred Assets and Seller, as Buyer has deemed
necessary or appropriate. EXCEPT FOR THE REPRESENTATIONS EXPRESSLY MADE BY
SELLER HEREIN , IN Article III, OR IN ANY CERTIFICATE, AGREEMENT OR INSTRUMENT
TO BE DELIVERED PURSUANT HERETO, BUYER ACKNOWLEDGES AND AGREES THAT (a) THERE
ARE NO REPRESENTATIONS, WARRANTIES, STATEMENTS, ASSURANCES OR GUARANTEES MADE BY
SELLER, EXPRESS OR IMPLIED, AS TO (i) THE TRANSFERRED ASSETS, OR (ii) THE
OBLIGATIONS, BUSINESS, RESULTS OF OPERATIONS, CONDITION (FINANCIAL,
ENVIRONMENTAL OR OTHERWISE) OR PROSPECTS RELATING TO THE BUSINESS, AND THAT IN
MAKING ITS DECISION TO ENTER INTO THIS AGREEMENT AND TO CONSUMMATE THE PURCHASE
OF THE TRANSFERRED ASSETS AND THE ASSUMPTION OF THE ASSUMED OBLIGATIONS, BUYER
HAS RELIED AND WILL RELY SOLELY UPON ITS OWN INDEPENDENT INVESTIGATION,
VERIFICATION, ANALYSIS AND EVALUATION; (b) SELLER DISCLAIMS ALL LIABILITY AND
RESPONSIBILITY FOR ANY REPRESENTATION,
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WARRANTY, STATEMENT OR INFORMATION ORALLY OR IN WRITING MADE OR COMMUNICATED TO
BUYER INCLUDING ANY OPINION, INFORMATION OR ADVICE WHICH MAY HAVE BEEN PROVIDED
TO BUYER BY SELLER OR ANY OF ITS AFFILIATES (INCLUDING ANY BACKCAST DATA OR
MODELS PROVIDED BY SELLER, WHICH HAVE BEEN PROVIDED FOR ILLUSTRATION PURPOSES
ONLY, ANY OTHER INFORMATION PROVIDED IN THE CONFIDENTIAL INFORMATION MEMORANDUM
DATED WINTER 2007, AS SUPPLEMENTED TO THE DATE OF THIS AGREEMENT, ANY
CORRESPONDENCE FROM SELLER OR ANY OF ITS AFFILIATES OR FROM UBS SECURITIES LLC
AS SELLER'S ADVISOR, ANY PRESENTATION BY THE MANAGEMENT OF SELLER OR ANY OF ITS
AFFILIATES AND ANY INFORMATION, DOCUMENT OR MATERIAL PROVIDED OR MADE AVAILABLE
TO BUYER, OR STATEMENTS MADE TO BUYER DURING SITE OR OFFICE VISITS, IN ANY
DATAROOMS OR MANAGEMENT PRESENTATIONS); (c) NEITHER SELLER NOR ANY OF ITS
AFFILIATES HAVE MADE, AND SELLER HEREBY