no Selling
Party has made, does make or has authorized anyone else to make, any
representations, warranties or promises of any kind, including as to: (i) the
existence or non-existence of access to or from the Purchased Real Property
Assets or any portion thereof; (ii) the location of the Purchased Real Property
Assets or any portion thereof within any flood plain, flood prone area,
watershed or the designation of any portion thereof as "wetlands"; (iii) the
availability of water, sewer, electrical, gas or other utility services at or on
the Purchased Real Property Assets; (iv) the number of acres or square footage
in the Purchased Real Property Assets; (v) the present or future physical
condition or suitability of the Purchased Assets for any purpose; (vi) the
actual amount and type of timber on the Purchased Real Property Assets, if any;
or (vii) any other matter or thing affecting or relating to the Purchased Assets
or this Agreement.
(b) Each Buying Party acknowledges that (i) the Selling Parties have not
obtained mineral title searches and will not provide a title commitment for the
Conveyed Minerals; and (ii) it will be Buyer Parent's responsibility, at Buyer
Parent's cost, if Buyer Parent desires, to confirm the exact Conveyed Mineral
interest and title being conveyed.
(c) EACH BUYING PARTY ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLES V, VI AND VII, IN THE CERTIFICATES DELIVERED BY
SELLER AT THE CLOSING PURSUANT TO SECTIONS 3.2(A)(I) AND 3.2(A)(XI) AND IN THE
DEEDS DELIVERED BY SELLER PURSUANT TO SECTIONS 3.2(A)(V), 3.2(A)(VI),
3.2(A)(VII) AND 3.2(A)(VIII) OR THE CERTIFICATES DELIVERED BY
32
THE OTHER SELLING PARTIES PURSUANT TO SECTION 3.2(A)(XII): (I) NO
REPRESENTATIONS, WARRANTIES OR PROMISES, EXPRESS OR IMPLIED, HAVE BEEN OR ARE
BEING MADE BY OR ON BEHALF OF ANY SELLING PARTY OR ANY OTHER PERSON, INCLUDING
WITH RESPECT TO THE CONDITION OR VALUE OF THE PURCHASED ASSETS AND EACH OF THE
SELLING PARTIES HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE
PURCHASED ASSETS, EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND SUITABILITY FOR ITS INTENDED USE, AND (II) IN
ENTERING INTO THIS AGREEMENT, NO BUYING PARTY HAS RELIED ON OR DOES RELY ON ANY
SUCH REPRESENTATIONS, WARRANTIES OR PROMISES, EXPRESS OR IMPLIED, BY OR ON
BEHALF OF ANY SELLING PARTY OR ANY OTHER PERSON. BUYER PARENT, BUYER, EACH CASH
ENTITY, EACH TIMBER ENTITY AND EACH BUYER AFFILIATE SHALL TAKE THE PURCHASED
ASSETS IN "AS IS, WHERE IS, AND WITH ALL FAULTS" CONDITION ON THE CLOSING DATE,
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
UPON THE CLOSING, SUBJECT TO SECTION 1.8 AND ARTICLE XIII, EACH BUYING PARTY
SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING ADVERSE ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY SELLER'S OR BUYER PARENT'S
INVESTIGATIONS, AND, UPON THE CLOSING, EACH BUYING PARTY SHALL BE DEEMED TO HAVE
WAIVED, RELINQUISHED AND RELEASED SELLER AND THE SELLING PARTIES FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF
ACTION IN TORT), LOSSES, DAMAGES,