ANY NON-PUBLIC INFORMATION
FURNISHED BY SELLER TO PURCHASER, AND (ii) THE POST-CLOSING AUDIT (DEFINED BELOW
IN SECTION 12.16), AND PURCHASER, FOR ITSELF AND ON BEHALF OF THE PURCHASER
PARTIES, HEREBY RELEASES SELLER FROM ANY LIABILITY TO OR CLAIMS OF PURCHASER OR
THE PURCHASER PARTIES FOR OR ON THE BASIS OF ANY OF THE FOREGOING. PURCHASER
FURTHER AGREES THAT ONLY PURCHASER WOULD HAVE THE RIGHT TO ASSERT THE FOLLOWING
CLAIMS, AND THEREFORE FOR ITSELF ONLY, WAIVES, AND WILL NOT ATTEMPT TO ASSERT,
ANY LIABILITY OR CLAIMS AGAINST THE SELLER PARTIES FOR OR ON THE BASIS OF (i)
SELLER'S FAILURE TO DISCLOSE ANY INFORMATION TO PURCHASER, AND (ii) THE
NEGOTIATION AND EXECUTION OF THIS AGREEMENT, AND PURCHASER HEREBY RELEASES
SELLER FROM ANY LIABILITY TO OR CLAIMS OF PURCHASER FOR OR ON THE BASIS OF ANY
OF THE FOREGOING. THE PURCHASER'S WAIVER AND RELEASE PURSUANT TO THIS SECTION
7.5(a) SHALL SURVIVE THE CLOSING OR THE TERMINATION OF THIS AGREEMENT.
22
(b)
PURCHASER ACKNOWLEDGES THAT HAVING HAD THE OPPORTUNITY TO INSPECT
THE PROPERTY, HAVING HAD THE OPPORTUNITY TO OBSERVE ITS PHYSICAL CHARACTERISTICS
AND EXISTING CONDITIONS AND HAVING HAD THE OPPORTUNITY TO CONDUCT SUCH
INVESTIGATION AND STUDY ON AND OF THE PROPERTY AND ADJACENT AREAS AS IT DEEMS
NECESSARY, PURCHASER HEREBY WAIVES, AND RELEASES ALL OF THE SELLER PARTIES FROM,
ANY AND ALL OBJECTIONS TO OR COMPLAINTS REGARDING SUCH CHARACTERISTICS AND
CONDITIONS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, FEDERAL, STATE OR
COMMON LAW BASED ACTIONS AND ANY PRIVATE RIGHT OF ACTION UNDER STATE AND FEDERAL
LAW TO WHICH THE PROPERTY IS OR MAY BE SUBJECT, INCLUDING, BUT NOT LIMITED TO,
CERCLA AND RCRA, PHYSICAL CHARACTERISTICS AND EXISTING CONDITIONS, INCLUDING,
WITHOUT LIMITATION, STRUCTURAL AND GEOLOGIC CONDITIONS, SUBSURFACE SOIL AND
WATER CONDITIONS AND SOLID AND HAZARDOUS WASTE AND HAZARDOUS SUBSTANCES) ON,
UNDER, ADJACENT TO OR OTHERWISE AFFECTING THE PROPERTY. PURCHASER FURTHER HEREBY
ASSUMES, AND RELEASES ALL OF THE SELLER PARTIES FROM, THE RISK OF CHANGES IN
APPLICABLE LAWS AND REGULATIONS RELATING TO PAST, PRESENT AND FUTURE
ENVIRONMENTAL CONDITIONS ON THE PROPERTY, AND THE RISK THAT ADVERSE PHYSICAL
CHARACTERISTICS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF
HAZARDOUS SUBSTANCES OR OTHER CONTAMINANTS, MAY NOT BE REVEALED BY ITS
INVESTIGATIONS PERMITTED HEREUNDER.
(c)
In connection with the releases by Purchaser of the Seller
Parties in Sections 7.5(a) and 7.5(b), Purchaser, on behalf of itself and all of
its affiliates, expressly waives all rights under California Civil Code Section
1542, which provides that:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
The foregoing releases in Sections 7.5(a) and 7.5(b) shall apply with respect to
any liability of Seller to Purchaser in respect of a claim or action brought by
a private party or by a governmental authority under any statute or common law
now or hereafter in effect, including, without limitation, any statute