TO BE DELIVERED FROM SELLER TO PURCHASER AT THE CLOSING.
WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT AS SET FORTH
IN SECTION 6 BELOW OR IN THE SPECIAL WARRANTY DEED TO BE DELIVERED FROM SELLER
TO PURCHASER AT THE CLOSING, SELLER DISCLAIMS, WHICH PURCHASER ACKNOWLEDGES, ANY
WARRANTY, OF OR RELATING TO:
(I) THE USE, INCOME POTENTIAL, EXPENSES,
OPERATION, CHARACTERISTICS OR CONDITION OF THE PROPERTY OR ANY PORTION
THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY,
MERCHANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR A PARTICULAR
PURPOSE, OR GOOD AND WORKMANLIKE CONSTRUCTION; (II) THE NATURE OR QUALITY OF
CONSTRUCTION, STRUCTURAL DESIGN AND ENGINEERING OF THE PROPERTY; (III) THE
ENVIRONMENTAL CONDITION OF THE PROPERTY AND THE PRESENCE OR ABSENCE OF OR
CONTAMINATION BY HAZARDOUS MATERIALS OR THE COMPLIANCE OF THE PROPERTY WITH ALL
REGULATIONS OR LAWS RELATING TO HEALTH OR THE ENVIRONMENT; AND (IV) THE SOIL
CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS
EXISTING IN OR ON THE PROPERTY.
PURCHASER SHALL ASSUME ALL RISKS, LIABILITIES,
CLAIMS, DAMAGES AND COSTS (AND AGREES SELLER SHALL NOT BE LIABLE FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES) RESULTING OR ARISING FROM OR
RELATED TO THE PROPERTY OR THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE,
REPAIR OR OPERATION THEREOF.
PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR
STATEMENTS (ORAL OR WRITTEN) WHICH MAY HAVE BEEN MADE OR MAY BE MADE BY SELLER
OR SELLER'S RELATED PARTIES, AND IS RELYING SOLELY UPON PURCHASER'S OR ITS
REPRESENTATIVES' OWN PHYSICAL INSPECTION OF THE PROPERTY.
PURCHASER WAIVES, TO
THE EXTENT ALLOWED BY LAW, ANY CLAIMS UNDER FEDERAL, STATE OR OTHER LAW THAT
PURCHASER MIGHT OTHERWISE HAVE AGAINST SELLER RELATING TO THE CONDITION OF THE
PROPERTY.
PURCHASER ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION 5(E) ARE A
MATERIAL INDUCEMENT TO SELLER TO CONSUMMATE THE PURCHASE AND SALE OF THE
PROPERTY. PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT PURCHASER HAD THE
OPPORTUNITY TO BE REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE
TRANSACTION CONTEMPLATED BY THIS CONTRACT.
PURCHASER STIPULATES THAT THE
PROVISIONS OF THIS SECTION WERE NEGOTIATED BETWEEN IT AND SELLER AND ARE A
MATERIAL FACTOR IN THE DETERMINATION OF THE PURCHASE PRICE FOR THE PROPERTY.
THE PROVISIONS OF THIS SUBSECTION 5(E) SHALL SURVIVE THE CLOSING.
8
(f)
Purchaser shall have the right to meet with and interview the
tenants of the Property; provided, however, Purchaser shall schedule such
meetings through Seller's manager of the Property and Seller may have a
representative attend all such meetings.
(g)
Capitalized terms used in this Subsection (g) and not otherwise
defined shall have the following meanings:
(i)
"Existing Debt" means the indebtedness represented by those two
certain promissory notes dated October 9, 2008, secured by the Property,
executed by Seller, in the original principal amount of $42,500,000 and
$42,500,000, payable to the order of Massachusetts Mutual Life Insurance Company
("Existing Lender") and subject to the other terms and conditions as provided in
the documents, instruments and agreements evidencing or securing such loan
(collectively, the "Existing Debt Documents").
(ii)
"Defeasance