or its Affiliates (the "Seller Corporate Policies").
4.8
Investment Representation.
Buyer acknowledges that the Membership
Interests are not registered under the Securities Act.
Buyer is an "accredited
investor" as defined under the Securities Act and possesses such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of its investments hereunder.
Buyer is acquiring
beneficial ownership of the Membership Interests for its own account, for
investment purposes only and not with a view to the distribution thereof (other
than in compliance with all applicable federal and state securities Laws).
Buyer agrees that the Membership Interests will not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of, directly or
indirectly, without registration under the Securities Act, except pursuant to a
valid exemption from registration under the Securities Act.
4.9
Investigation; No Other Representations or Warranties.
(A)
BUYER HEREBY ACKNOWLEDGES THAT IT:
(1)
IS AN INFORMED AND SOPHISTICATED PARTICIPANT IN THE TRANSACTIONS
CONTEMPLATED HEREBY AND BY THE ANCILLARY AGREEMENTS;
(2)
HAS CONDUCTED A THOROUGH REVIEW AND ANALYSIS OF THE OPERATIONS,
ASSETS, LIABILITIES, RESULTS OF OPERATIONS, FINANCIAL CONDITION, SOFTWARE,
TECHNOLOGY AND PROSPECTS OF THE BUSINESS AND THE COMPANY;
20
(3)
HAS BEEN PROVIDED ACCESS TO THE AGENTS, PERSONNEL, PROPERTIES,
PREMISES AND RECORDS OF EACH OF SELLER, THE BUSINESS AND THE COMPANY THAT IT
CONSIDERED SUFFICIENT FOR PURPOSES OF ENABLING IT TO GIVE THIS ACKNOWLEDGEMENT;
AND
(4)
HAS, AS OF THE DATE HEREOF, NO KNOWLEDGE OF ANY DISAGREEMENTS OR
CONCERNS WITH RESPECT TO THE BUSINESS AUDITED FINANCIAL STATEMENTS BASED ON
DILIGENCE PERFORMED BY BUYER AND ITS AFFILIATES ON THE BUSINESS TO DATE.
(B)
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH
IN ARTICLE III OF THIS AGREEMENT, BUYER ACKNOWLEDGES THAT NONE OF PARENT,
SELLER, THE COMPANY OR ANY OF THEIR AFFILIATES OR ANY OTHER PERSON MAKES ANY
OTHER EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT TO THE
MEMBERSHIP INTERESTS, THE COMPANY, THE BUSINESS OR OTHERWISE OR WITH RESPECT TO
ANY OTHER INFORMATION PROVIDED TO BUYER OR ITS RESPECTIVE AFFILIATES, AGENTS OR
REPRESENTATIVES, WHETHER ON BEHALF OF PARENT, SELLER, ANY AFFILIATE OF EITHER OR
THE COMPANY OR SUCH OTHER PERSONS, INCLUDING AS TO (1) THE OPERATION OF THE
BUSINESS BY BUYER OR THE COMPANY AFTER THE CLOSING IN ANY MANNER OTHER THAN
OPERATED BY SELLER OR SELLER'S AFFILIATES OR (2) THE PROBABLE SUCCESS OR
PROFITABILITY OF THE OWNERSHIP OR OPERATION OF THE BUSINESS BY BUYER OR THE
COMPANY AFTER THE CLOSING, INCLUDING THE PROFITABILITY OF THE MATERIAL
CONTRACTS, EITHER INDIVIDUALLY OR IN THE AGGREGATE.
FOR THE AVOIDANCE OF DOUBT,
BUYER HEREBY AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE III OF THIS
AGREEMENT, THE MEMBERSHIP INTERESTS, THE BUSINESS AND THE ASSETS AND LIABILITIES
OF THE BUSINESS ARE TRANSFERRED "AS IS," "WHERE IS" AND, SUBJECT ONLY TO THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE III, WITH ALL FAULTS AND
WITHOUT ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER,
EXPRESS OR IMPLIED, ORAL OR WRITTEN, AND IN PARTICULAR, WITHOUT