DEBTS,
CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES, EXCEPT FOR ANY LIABILITY OF
SELLER FOR ANY BREACH OF ANY REPRESENTATION OR WARRANTY SET FORTH IN SECTION 4.3
BELOW, WHICH LIABILITY SHALL SURVIVE THE CLOSING ONLY FOR THE SURVIVAL PERIOD
AND SHALL BE SUBJECT TO THE LIMITATION ON LIABILITY SET FORTH IN SECTION 4.5
BELOW.
IN CONNECTION WITH THE RELEASE SET FORTH IN SECTION 4.2(A) ABOVE, BUYER
EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE WHICH
PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
(D)
THE RELEASE SET FORTH IN SECTIONS 4.2(A) AND 4.2(C) ABOVE
SHALL NOT INCLUDE ANY CLAIMS ARISING FROM THE INTENTIONAL MISREPRESENTATION OF
SELLER.
10
(E)
THE PROVISIONS OF THIS SECTION 4.2 SHALL SURVIVE
THE CLOSING.
4.3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
(A)
SELLER IS A LIMITED LIABILITY COMPANY, DULY ORGANIZED,
VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF DELAWARE, AND QUALIFIED
TO TRANSACT BUSINESS AND IN GOOD STANDING IN THE STATE OF CALIFORNIA.
(B)
SELLER HAS THE POWER AND AUTHORITY TO ENTER INTO THIS
AGREEMENT AND CONVEY THE PROPERTY TO BUYER AND TO EXECUTE AND DELIVER THE OTHER
DOCUMENTS REFERRED TO HEREIN AND TO PERFORM HEREUNDER AND THEREUNDER ON BEHALF
OF SELLER.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY
SELLER AND IS, OR WHEN DELIVERED SHALL BE, A VALID, BINDING AND ENFORCEABLE
OBLIGATION OF SELLER.
(C)
NEITHER THE EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, NOR THE
COMPLIANCE WITH THE TERMS AND CONDITIONS HEREOF WILL VIOLATE, IN ANY MATERIAL
RESPECT, ANY STATUTE, REGULATION, RULE, INJUNCTION, JUDGMENT, ORDER, DECREE,
RULING, CHARGE OR OTHER RESTRICTIONS OF ANY GOVERNMENT, GOVERNMENTAL AGENCY OR
COURT TO WHICH SELLER IS SUBJECT.
(D)
SELLER IS NOT REQUIRED TO OBTAIN THE CONSENT OR APPROVAL
OF ANY GOVERNMENT AGENCY, DEPARTMENT OR OTHER GOVERNMENT BODY TO ENTER INTO THIS
AGREEMENT OR IF REQUIRED, ANY SUCH REQUIRED CONSENTS OR APPROVALS HAVE BEEN
OBTAINED.
(E)
THERE ARE NO GENERAL ASSIGNMENTS FOR THE BENEFIT OF
CREDITORS, OR VOLUNTARY OR INVOLUNTARY PROCEEDINGS IN BANKRUPTCY, EXISTING,
PENDING OR, TO SELLER'S KNOWLEDGE, THREATENED AGAINST SELLER.
(F)
TO SELLER'S KNOWLEDGE, THE REPORTS, STUDIES,
ASSESSMENTS, INVESTIGATIONS AND OTHER MATERIALS TO BE MADE AVAILABLE TO BUYER
FOR ITS REVIEW PURSUANT TO SECTION 3.1(F)(VII) ABOVE, SHALL CONSTITUTE ALL
WRITTEN MATERIALS IN THE POSSESSION, CUSTODY OR CONTROL OF SELLER OR ITS
PROPERTY MANAGER RELATED TO THE PRESENCE OF HAZARDOUS MATERIALS AT, ON OR UNDER
THE PROPERTY AND THE COMPLIANCE OF THE PROPERTY WITH HAZARDOUS MATERIALS LAWS;
PROVIDED THAT SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO WHETHER BUYER IS
ENTITLED TO RELY ON ANY SUCH REPORTS, STUDIES, ASSESSMENTS, INVESTIGATIONS OR
OTHER MATERIALS, AND IF BUYER DESIRES TO RELY ON THE SAME, BUYER SHALL BE
RESPONSIBLE FOR