PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR
DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTIES AND THE
EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY
HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTIES, AND, EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT (INCLUDING THE EXPRESS REPRESENTATIONS
AND WARRANTIES CONTAINED HEREIN), THE SELLER CLOSING DOCUMENTS AND ANY OTHER
DELIVERIES OR DOCUMENTS PROVIDED TO OR KNOWN TO BUYER, WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLERS OR THEIR
AGENTS OR EMPLOYEES WITH RESPECT
27
THERETO. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE
MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL
AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S
INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLERS AND/OR THEIR AFFILIATES FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH
BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLERS AND/OR THEIR AFFILIATES AT
ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION
DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND
ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE
PROPERTIES.
(d)
BUYER, WITH BUYER'S COUNSEL, HAS FULLY
REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, IN THIS ARTICLE VIII, AND UNDERSTANDS THEIR SIGNIFICANCE AND
EFFECT. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS
SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IN THIS
ARTICLE VIII, ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLERS WOULD NOT
HAVE AGREED TO SELL THE PROPERTIES TO BUYER FOR THE AGGREGATE NET PURCHASE PRICE
WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, IN THIS ARTICLE VIII. THE TERMS AND CONDITIONS OF
THIS ARTICLE VIII WILL EXPRESSLY SURVIVE THE CLOSING OR ANY TERMINATION OF THIS
AGREEMENT AND WILL NOT MERGE WITH THE PROVISIONS OF DOCUMENTS TO BE DELIVERED AT
ANY CLOSING.
(e)
No constituent member in, manager or agent
of Sellers, nor any advisor, trustee, director, officer, employee, beneficiary,
shareholder, participant, representative or agent of any corporation or trust
that is or becomes a constituent member in Sellers (including, but not limited
to, Kite Realty Group, L.P. and Kite Realty Group Trust), shall have any
personal liability, directly or indirectly, under or in connection with this
Agreement or any agreement or document made, delivered or entered into under or
pursuant to the provisions of this Agreement or any amendment or amendments to
any of the foregoing made at any time or times, heretofore or hereafter, and
Buyer and its successors and assigns and, without limitation, all other persons
and entities, shall look solely to Sellers' estate and interest in the