to
the Property, and that, except for Seller representations and warranties
expressly set forth in Section 3.1 hereof, Seller makes no representation or
warranty of any kind or nature whatsoever, either express or implied, regarding
the accuracy or completeness of the Property Materials, the Title Report or the
Survey. Buyer further acknowledges and agrees that the Property shall be
conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS,
WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind
or nature whatsoever, either express or implied, except as expressly set forth
in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase
Price. Buyer hereby assumes the risk that adverse physical and environmental
conditions may not have been revealed by the Property Materials, Buyer's
Physical Inspections and Other Investigations of the Property and any other due
diligence investigations of Buyer.
3.4.2
BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY
CLAIMING BY, THROUGH OR UNDER BUYER,
22
HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED
PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS,
DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER
DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR
MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN
CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER
CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO
BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters").
NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE:
(I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS
PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER'S
FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS
AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE
FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES,
LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS,
WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS
AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR
DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED
MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER
THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2.
NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY
SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY
DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
ARTICLE 4
CONDITIONS OF BUYER'S OBLIGATIONS
4.1
Conditions. Buyer's obligation to consummate the transaction contemplated
by this Agreement shall be subject to the satisfaction or performance of the
following terms and conditions, any one or more of which may be waived by Buyer
in writing, in its sole discretion, in whole or in part, on or