advise Seller immediately if Buyer decides at any time prior to the
Due Diligence Period Expiration Date not to proceed with the purchase
contemplated hereunder.
BUYER'S KNOWLEDGE.
Seller shall have no liability whatsoever to Buyer with respect to any matter
related to the Property disclosed by Seller in the Due Diligence Materials or of
which Buyer or its agent or counsel obtains actual knowledge, by any means,
prior to the Due Diligence Period Expiration Date.
For purposes of this Section
4.4, Buyer's actual knowledge shall mean the actual, conscious knowledge of T.
Richard Litton, Jr., Jordan E. Slone or Michael H. Heinricher.
AS-IS SALE.
BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT (a) EXCEPT FOR (I) THE
REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY SELLER IN THIS AGREEMENT, AS
QUALIFIED BY SECTION 4.4, AND SUBJECT TO THE SURVIVAL PROVISIONS OF THIS
AGREEMENT, AND (II) THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY SELLER
IN THE CLOSING DOCUMENTS (ALL THE FOREGOING BEING REFERRED TO, COLLECTIVELY, AS
"SELLER'S UNDERTAKINGS"), SELLER SHALL SELL AND BUYER SHALL PURCHASE THE
MEMBERSHIP INTERESTS AND THEREBY THE PROPERTY "AS IS, WHERE IS AND WITH ALL
FAULTS AND LATENT PATENT DEFECTS" AND WITH ALL VIOLATIONS OF LAWS AND
ORDINANCES, AND (b) EXCEPT FOR SELLER'S UNDERTAKINGS, BUYER IS NOT RELYING ON
ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER, OR ANY SELLER
PARTY AS TO ANY MATTER, CONCERNING THE PROPERTY, OR (EXCEPT TO THE EXTENT
PROVIDED OTHERWISE IN SELLER'S UNDERTAKINGS) SET FORTH, CONTAINED OR ADDRESSED
IN THE DUE DILIGENCE MATERIALS (INCLUDING WITHOUT LIMITATION, THE COMPLETENESS
THEREOF), INCLUDING WITHOUT LIMITATION ANY WARRANTIES AS TO: (i) THE QUALITY,
NATURE, HABITABILITY, MERCHANTABILITY, USE, OPERATION, VALUE, MARKETABILITY,
ADEQUACY OR PHYSICAL CONDITION OF THE PROPERTY OR ANY ASPECT OR PORTION THEREOF,
INCLUDING, WITHOUT LIMITATION, STRUCTURAL ELEMENTS, FOUNDATION, ROOF,
APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES, ELECTRICAL, MECHANICAL,
HVAC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND APPLIANCES, SOILS,
GEOLOGY AND GROUNDWATER, (ii) THE DIMENSIONS OR LOT SIZE OF THE PROPERTY OR THE
SQUARE FOOTAGE OF THE IMPROVEMENTS THEREON OR OF ANY TENANT SPACE THEREIN, (iii)
THE DEVELOPMENT OR INCOME POTENTIAL, OR RIGHTS OF OR RELATING TO, THE PROPERTY,
OR THE PROPERTY'S USE, HABITABILITY,
10
MERCHANTABILITY, OR FITNESS, OR THE SUITABILITY, VALUE OR ADEQUACY OF THE
PROPERTY FOR ANY PARTICULAR PURPOSE, THE ZONING OR OTHER LEGAL STATUS OF THE
PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF THE PROPERTY,
THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS,
REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY
GOVERNMENTAL AUTHORITY OR OF ANY OTHER PERSON OR ENTITY (INCLUDING, WITHOUT
LIMITATION, THE AMERICANS WITH DISABILITIES ACT), THE ABILITY OF BUYER TO OBTAIN
ANY NECESSARY GOVERNMENTAL APPROVALS, LICENSES OR PERMITS FOR BUYER'S INTENDED
USE OR DEVELOPMENT OF THE PROPERTY, THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS ON, IN, UNDER, ABOVE OR ABOUT THE PROPERTY OR ANY ADJOINING OR
NEIGHBORING PROPERTY, THE QUALITY OF ANY LABOR AND MATERIALS USED IN THE
CONSTRUCTION OF ANY IMPROVEMENTS,