PHYSICAL OR ENVIRONMENTAL CONDITION,
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROJECT WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF ASSIGNORS TO WELLS,
OR ANY OTHER MATTER OR THING REGARDING THE PROJECT. WELLS ACKNOWLEDGES AND
AGREES THAT, UPON CLOSING, ASSIGNORS WILL CONTRIBUTE OR ASSIGN TO KCPLLC AND
KCPLLC WILL ACCEPT THE PROJECT "AS-IS, WHERE-IS, WITH ALL FAULTS," EXCEPT TO THE
EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE DOCUMENTS TO BE
DELIVERED AT CLOSING. WELLS HAS NOT RELIED AND WILL NOT RELY ON, AND ASSIGNORS
ARE NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING OR RELATING TO THE PROJECT
(INCLUDING ANY OFFERING CIRCULAR AND ANY OTHER PROJECT INFORMATION PACKAGES
DISTRIBUTED WITH RESPECT TO THE PROJECT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT) MADE OR FURNISHED BY ASSIGNORS, ANY MANAGER OR REAL ESTATE BROKER,
FINDER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT ASSIGNORS, TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS TO BE DELIVERED AT CLOSING. WELLS
REPRESENTS TO ASSIGNORS THAT WELLS HAS COMPLETED SUCH INVESTIGATIONS OF THE
PROJECT, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS WELLS HAS DEEMED NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROJECT. UPON CLOSING, KCPLLC WILL 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 WELLS'
INVESTIGATIONS, AND KCPLLC, UPON CLOSING, WILL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED ASSIGNORS (AND THEIR OFFICERS, DIRECTORS, MEMBERS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
7
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT KCPLLC MIGHT HAVE
ASSERTED OR ALLEGED AGAINST ASSIGNORS (AND/OR THEIR OFFICERS, DIRECTORS,
MEMBERS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING
OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS;
PROVIDED, HOWEVER, IN NO EVENT SHALL ASSIGNORS BE RELEASED FROM CLAIMS ARISING
UNDER THOSE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS
DELIVERED AT CLOSING THAT BY THEIR TERMS EXPLICITLY SURVIVE THE CLOSING OF THE
TRANSACTIONS HEREUNDER OR FROM THEIR RESPECTIVE CONTINUING INTEREST IN THE
PROJECT.
4. REPRESENTATIONS AND WARRANTIES. The following representations and warranties
are made as of the date hereof and shall be deemed to be remade as of the date
of Closing (as such representations and warranties may be modified by the
applicable party in writing at or prior to Closing):
(a) Representations and Warranties of KCPLP. KCPLP hereby represents and
warrants to KCPLLC, KC Lessee, Wells and Wells QRS (Wells and Wells QRS,
collectively, the "Wells Parties") as follows:
(i) KCPLP is a limited partnership duly organized, validly existing