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 Seller Land or Leasehold Interests; (iv) the number of
acres or square footage in the Seller Land or Leasehold Interests; (v) the
present or future physical condition or suitability of the Seller Land or
Leasehold Interests for any purpose; (vi) the actual amount and type of timber
on the Seller Land or Leasehold Interests; or (vii) any other matter or thing
affecting or relating to the Purchased Assets or this Agreement.
(b) Purchaser, on behalf of itself, on behalf of Purchaser, LLC and on behalf of
Timberlands II, LLC upon and after the Closing Date acknowledges that (i) Seller
has not obtained mineral title searches and will not provide a title commitment
for the Conveyed Minerals; and (ii) it will be Purchaser's responsibility, at
Purchaser's cost, if Purchaser desires, to confirm the exact Conveyed Minerals
interest and title being conveyed.
(c) PURCHASER, ON BEHALF OF ITSELF, ON BEHALF OF PURCHASER, LLC AND ON BEHALF OF
TIMBERLANDS II, LLC, UPON AND AFTER THE CLOSING DATE, ACKNOWLEDGES THAT, EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLES V, VI, VII AND VIII
OF THIS AGREEMENT, IN ARTICLES VI
11
AND VII OF THE CONTRIBUTION AGREEMENT, IN THE CERTIFICATES DELIVERED BY SELLER
AT THE CLOSING PURSUANT TO SECTION 3.2(A)(II) IN THE DEEDS DELIVERED BY SELLER
PURSUANT TO SECTIONS 3.2(A)(VI) AND 3.2(A)(VII) AND IN ANY AFFIDAVITS DELIVERED
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 SELLER OR ANY
OTHER PERSON, INCLUDING WITH RESPECT TO THE CONDITION OR VALUE OF THE PURCHASED
ASSETS AND SELLER 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, PURCHASER HAS NOT RELIED ON OR DOES NOT RELY ON
ANY SUCH REPRESENTATIONS, WARRANTIES OR PROMISES, EXPRESS OR IMPLIED, BY OR ON
BEHALF OF SELLER OR ANY OTHER PERSON. PURCHASER, PURCHASER, LLC AND TIMBERLANDS
II, LLC, 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 OR THE CONTRIBUTION AGREEMENT.
UPON THE CLOSING, PURCHASER, PURCHASER, LLC AND TIMBERLANDS II, LLC SHALL ASSUME
THE RISK THAT ADVERSE MATTERS MAY NOT HAVE BEEN REVEALED BY SELLER'S OR
PURCHASER'S INVESTIGATIONS, AND, UPON THE CLOSING, PURCHASER, PURCHASER, LLC AND
TIMBERLANDS II, LLC SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED
SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING
CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, WHICH PURCHASER, PURCHASER, LLC OR TIMBERLANDS II, LLC MIGHT
HAVE ASSERTED OR ALLEGED