forth herein.
Without in any way limiting the
foregoing, Buyer agrees that (a) the subject matter of this Agreement and all of
the terms hereof and (b) any and all materials and information provided by
Sellers or made available to Buyer, including, without limitation, the
Information and Due Diligence Material, shall be kept strictly confidential in
accordance with the terms of the Confidentiality Agreement.
The provisions of
this Article XI shall survive the termination of this Agreement.
ARTICLE XII.
CONDITION OF PROPERTIES; RELEASE OF CLAIMS.
Section 12.1.
Condition of Properties.
EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT, BUYER IS PURCHASING THE PROPERTIES "AS-IS, WHERE IS AND WITH ALL
FAULTS" IN THEIR PRESENT CONDITION, SUBJECT TO REASONABLE USE, WEAR, TEAR AND
NATURAL DETERIORATION OF THE PROPERTIES BETWEEN THE DATE HEREOF AND THE CLOSING
DATE AND FURTHER AGREES THAT (a) SELLERS SHALL NOT BE LIABLE FOR ANY LATENT OR
PATENT OR OTHER DEFECTS IN THE PROPERTIES, (b) EXCEPT AS EXPRESSLY SET FORTH
HEREIN, NEITHER MANAGER, SELLERS, NOR ANY OTHER RELEASED PARTY HAS MADE OR WILL
MAKE OR WILL BE ALLEGED TO HAVE MADE ANY VERBAL OR WRITTEN REPRESENTATIONS,
WARRANTIES, PROMISES OR
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GUARANTIES WHATSOEVER TO BUYER, WHETHER EXPRESS OR IMPLIED, REGARDING THE
PROPERTIES OR ANY PART THEREOF, OR ANYTHING RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT, AND (c) BUYER, IN EXECUTING, DELIVERING AND PERFORMING THIS
AGREEMENT, HAS NOT AND DOES NOT RELY UPON ANY STATEMENT, INFORMATION, OR
REPRESENTATION TO WHOMSOEVER MADE OR GIVEN, WHETHER TO BUYER OR OTHERS, AND
WHETHER DIRECTLY OR INDIRECTLY, VERBALLY OR IN WRITING, MADE BY ANY PERSON, FIRM
OR CORPORATION, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
Section 12.2.
Release of Claims.
Except as otherwise set forth in this
Agreement, without limiting any provision in this Agreement, Buyer, for itself
and any of its successors and assigns 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 or their affiliates or any direct or indirect partner, member, trustee,
beneficiary, director, shareholder, manager, controlling person, affiliate,
officer, attorney, employee, agent, contractor, tenant, representative
(including, without limitation, Manager) 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 due diligence investigations by Receiving Party Representatives
permitted pursuant to Section 3.4 hereof, and (b) the Properties or