AFFILIATES, REPRESENTATIVES,
AGENTS OR CONSULTANTS HAVE MADE ANY REPRESENTATION OR WARRANTY IN RESPECT OF THE
INTERPRETATIONS OR ECONOMIC EVALUATIONS RELATIVE TO EITHER COMPANY, INCLUDING
WITH RESPECT TO THE FUTURE OPERATION OF EITHER COMPANY OR ITS BUSINESS, OR AS TO
THE PROSPECTS (FINANCIAL OR OTHERWISE) OF EITHER COMPANY.
APOLLO AND APOLLO LNG
FURTHER ACKNOWLEDGE, AGREE AND RECOGNIZE THAT ANY COST ESTIMATES, PROJECTIONS OR
OTHER PREDICTIONS CONTAINED
30
OR REFERRED TO IN ANY DOCUMENT PROVIDED TO APOLLO OR APOLLO LNG OR ANY OF THEIR
AFFILIATES, EMPLOYEES, AGENTS OR REPRESENTATIVES, ARE PREPARED FOR INTERNAL
PLANNING PURPOSES ONLY AND ARE NOT DEEMED TO BE REPRESENTATIONS AND WARRANTIES
OF SELLING STOCKHOLDER, HLDM, ARIZONA LNG, OR ANY OF THEIR RESPECTIVE DIRECTORS,
EMPLOYEES, SHAREHOLDERS, PARTNERS, MEMBERS OR OWNERS, OR ANY OF THEIR RESPECTIVE
AFFILIATES, AGENTS, REPRESENTATIVES, OR CONSULTANTS.
IT IS EXPRESSLY UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT THE SELLING
STOCKHOLDER MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT
TO THE ASSETS OR PROPERTIES OF EITHER COMPANY, WHETHER EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE. UPON CLOSING, APOLLO AND APOLLO LNG ACKNOWLEDGE THAT
THEY HAVE HAD, OR WILL HAVE HAD, PRIOR TO CLOSING, A REASONABLE OPPORTUNITY TO
CONDUCT THEIR DUE DILIGENCE ACTIVITIES AND TO INSPECT AND EXAMINE THE CONDITION
OF EACH AND EVERY ASSET AND PROPERTY OF EACH COMPANY, INCLUDING THE
ENVIRONMENTAL CONDITIONS OF THE ASSETS AND PROPERTIES OF EACH COMPANY, AND
APOLLO AND APOLLO LNG ARE AWARE OF AND ACCEPT THE CONDITION OF EACH AND EVERY
ASSET AND PROPERTY OF EACH COMPANY, INCLUDING THE ENVIRONMENTAL CONDITIONS OF
SUCH ASSETS AND PROPERTIES.
8.6.
REMEDIES:
LIMITATIONS ON LIABILITY.
(A)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, THE SOLE REMEDY OF APOLLO LNG OR APOLLO UNDER THIS AGREEMENT FOR A
BREACH BY SELLING STOCKHOLDER OF ANY REPRESENTATION OR WARRANTY SET FORTH IN
SECTION 6.1 OF THIS AGREEMENT, SHALL BE TO DEDUCT FROM THE FINAL PAYMENT DUE TO
SELLING STOCKHOLDER UNDER THE PURCHASE NOTE, THE AMOUNT TO WHICH APOLLO LNG AND
APOLLO ARE ENTITLED TO INDEMNIFICATION PURSUANT TO SECTION 8.2; IT BEING
EXPRESSLY UNDERSTOOD AND AGREED THAT THE SELLING STOCKHOLDER SHALL HAVE NO
OBLIGATION TO SATISFY ANY SUCH LIABILITY TO APOLLO LNG OR APOLLO IN ANY MANNER
(INCLUDING THE PAYMENT OF MONEY), OTHER THAN BY SUCH DEDUCTION FROM THE PAYMENT
UNDER THE PURCHASE NOTE.
(B)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
KEN KELLEY SHALL HAVE NO PERSONAL LIABILITY WHATSOEVER FOR ANY BREACH OF ANY
WARRANTY, REPRESENTATION, COVENANT OR AGREEMENT, OR WITH RESPECT TO ANY AND ALL
OTHER CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, OR FOR ANY
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND THAT APOLLO AND APOLLO LNG
SHALL HAVE NO RECOURSE AGAINST THE ASSETS OR PROPERTIES OF KEN KELLEY, IT BEING
EXPRESSLY UNDERSTOOD AND AGREED THAT THE SOLE REMEDY OF APOLLO LNG OR APOLLO
WITH RESPECT TO KEN KELLEY SHALL BE TO MAKE A DEDUCTION FROM THE FINAL PAYMENT
DUE UNDER THE PURCHASE NOTE, AS PROVIDED FOR AND SUBJECT TO