INFORMATION, (IV) EXCEPT AS EXPRESSLY SET FORTH
HEREIN, BUYER HAS NOT RELIED UPON ANY SUCH REPRESENTATIONS, WARRANTIES, PROMISES
OR GUARANTIES OR UPON ANY STATEMENTS MADE IN ANY INFORMATIONAL BROCHURE WITH
RESPECT TO THE PROPERTIES AND HAS ENTERED INTO THIS AGREEMENT AFTER HAVING MADE
AND RELIED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION, INSPECTION, ANALYSIS,
APPRAISAL, EXAMINATION AND EVALUATION OF THE FACTS AND CIRCUMSTANCES AND (V)
BUYER ACKNOWLEDGES THAT THE PROPERTIES MAY NOT BE IN COMPLIANCE WITH THE
AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED AND SELLERS MAKE NO
REPRESENTATIONS WITH RESPECT TO THE SAME.
WITHOUT LIMITING THE FOREGOING,
EXCEPT AS, AND SOLELY TO THE EXTENT, SPECIFICALLY SET FORTH IN THIS AGREEMENT,
SELLERS HAVE MADE NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING HAZARDOUS
MATERIALS (AS DEFINED BELOW) OR ENVIRONMENTAL CONDITION OF ANY KIND OR NATURE
ON, ABOUT OR WITHIN THE PROPERTIES OR THE PHYSICAL CONDITION OF THE PROPERTIES
OR THE COMPLIANCE OF ANY OF THE PROPERTIES WITH ANY LEGAL REQUIREMENTS AND BUYER
AGREES TO ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO,
CONSTRUCTION OR MECHANICAL DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS.
SELLER HAS NO
OBLIGATION TO REMEDY OR CAUSE COMPLIANCE WITH ANY VIOLATION OF ANY FEDERAL,
STATE, COUNTY, OR MUNICIPAL LAWS, ORDINANCES, ORDERS, REGULATIONS, REQUIREMENTS,
OR RECORDED COVENANTS OR RESTRICTIONS AFFECTING ANY PROPERTY.
SECTION 12.2.
RELEASE OF CLAIMS.
WITHOUT LIMITING ANY PROVISION IN
THIS AGREEMENT, BUYER, FOR ITSELF AND ANY OF ITS ASSIGNS PURSUANT TO ARTICLE XIX
BELOW AND THEIR AFFILIATES, HEREBY IRREVOCABLY AND ABSOLUTELY WAIVES ITS RIGHT
TO RECOVER FROM, AND FOREVER RELEASES AND DISCHARGES, AND COVENANTS NOT TO FILE
OR OTHERWISE PURSUE ANY LEGAL ACTION (WHETHER BASED ON CONTRACT, STATUTORY
RIGHTS, COMMON LAW OR OTHERWISE) AGAINST, SELLERS, SELLERS' AFFILIATES OR THEIR
AFFILIATES OR ANY DIRECT OR INDIRECT PARTNER, MEMBER, TRUSTEE, BENEFICIARY,
DIRECTOR, SHAREHOLDER, CONTROLLING PERSON, AFFILIATE, OFFICER, ATTORNEY,
EMPLOYEE, AGENT, CONTRACTOR, REPRESENTATIVE (INCLUDING, WITHOUT LIMITATION,
GOLDMAN, SACHS & CO. AND THE MARK WINKLER COMPANY) OR BROKER OF ANY OF THE
FOREGOING, AND ANY OF THEIR RESPECTIVE HEIRS, SUCCESSORS, PERSONAL
REPRESENTATIVES, DEVISEES, DONEES AND ASSIGNS (EACH A "RELEASED PARTY" AND
COLLECTIVELY, "RELEASED PARTIES") WITH RESPECT TO ANY AND ALL SUITS, ACTIONS,
PROCEEDINGS, INVESTIGATIONS, DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, FINES,
PENALTIES, LIENS, JUDGMENTS, LOSSES, INJURIES, DAMAGES, SETTLEMENT EXPENSES OR
COSTS OF WHATEVER KIND OR NATURE, WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN,
CONTINGENT OR OTHERWISE (INCLUDING ANY ACTION OR PROCEEDING BROUGHT OR
THREATENED OR ORDERED BY ANY GOVERNMENTAL AUTHORITY), INCLUDING, WITHOUT
LIMITATION, ATTORNEYS' AND EXPERTS' FEES AND EXPENSES, AND INVESTIGATION AND
REMEDIATION COSTS THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY BE CONNECTED WITH
(A) THE INVESTIGATIONS BY BUYER REPRESENTATIVES PERMITTED PURSUANT
37
TO SECTION 3.7 HEREOF, AND (B) THE PROPERTIES OR ANY PORTION THEREOF
(COLLECTIVELY, "CLAIMS"), INCLUDING, WITHOUT LIMITATION, THE PHYSICAL,
ENVIRONMENTAL AND STRUCTURAL CONDITION OF THE PROPERTIES OR ANY LAW OR
REGULATION APPLICABLE THERETO, OR ANY OTHER MATTER RELATING TO THE USE,
PRESENCE, DISCHARGE OR RELEASE OF HAZARDOUS MATERIALS (AS HEREINAFTER DEFINED)
ON, UNDER, IN, ABOVE