to Buyer and
Buyer and the Company shall be released and discharged from any further
obligation to each other hereunder; provided, that if Buyer so elects, Buyer may
accept such title as is tendered by the Company without a reduction in the
Purchase Price or reservation of claim against the Company (but without
limitation to any claim that Buyer may have with respect to a breach of the
Company's obligations pursuant to Section 9.1(d) hereof). Buyer's right to
terminate this Agreement pursuant to this Section 13.3 shall apply to the entire
Agreement and notwithstanding anything contained to the contrary herein, if
Buyer elects to terminate this Agreement pursuant to this Section 13.3, Buyer
shall not, in any event, have a right to terminate less than all of this
Agreement.
62
Section 13.4
Survey.
Buyer agrees to accept the Real Property subject
to all matters shown by the surveys described on Section 13.4 of the Company
Disclosure Letter (collectively, the "Survey"). The Company shall, at Buyer's
sole cost and expense, cause the Survey to be updated and recertified to Buyer
not earlier than one hundred twenty (120) days and not later than fifteen (15)
days prior to the Closing. If a recertified updated and recertified Survey
reveals: (a) any material encroachments of the Real Property onto property of
others; (b) any material encroachments of property of others onto the Real
Property; or (c) the location of any title matter on the Real Property in a
manner that would materially and adversely affect the ability to use the Real
Property as presently constructed and located on the Real Property; or any other
matter which would render title to the Real Property uninsurable and
unmarketable, and if such matters were not revealed by the Survey, then such
disclosure shall be an Additional Exception as to which the provisions of
Sections 13.2 and 13.3 hereof shall govern Buyer's and the Company's rights and
obligations.
Section 13.5
AS IS.
SUBJECT ONLY TO THE COMPANY'S REPRESENTATIONS AND
WARRANTIES AND COVENANTS EXPRESSLY SET FORTH HEREIN OR ANY CERTIFICATE OR
AGREEMENT DELIVERED PURSUANT HERETO AND SUBJECT TO THE CONDITIONS, RIGHTS AND
OBLIGATIONS SET FORTH HEREIN AND THEREIN, BUYER EXPRESSLY ACKNOWLEDGES AND
AGREES, AND REPRESENTS AND WARRANTS TO SELLER AND THE COMPANY, THAT BUYER HAS OR
WILL HAVE THE OPPORTUNITY TO FULLY EXAMINE AND INSPECT THE PURCHASED ASSETS
PRIOR TO THE EXECUTION OF THIS AGREEMENT AND THAT BUYER IS FULLY CAPABLE OF
EVALUATING AND HAS EVALUATED THE PURCHASED ASSETS' SUITABILITY FOR BUYER'S
INTENDED USE THEREOF, AND BUYER IS PURCHASING THE PURCHASED ASSETS WITH ALL
DEFECTS IN THEIR "AS IS", "WHERE IS" CONDITION AND WITH ALL FAULTS, WHETHER
KNOWN, UNKNOWN, APPARENT, OR LATENT. BUYER'S DECISION TO PURCHASE THE PURCHASED
ASSETS IS NOT BASED ON ANY COVENANT, WARRANTY, PROMISE, AGREEMENT, GUARANTY, OR
REPRESENTATION BY THE COMPANY, SELLER OR ANY OF THEIR AFFILIATES OR
REPRESENTATIVES AS TO CONDITION, PHYSICAL OR OTHERWISE, TITLE, LEASES, RENTS,
REVENUES, INCOME, EXPENSES, OPERATION, ZONING OR OTHER REGULATION, COMPLIANCE
WITH LAW, SUITABILITY FOR PARTICULAR PURPOSES OR ANY