ENVIRONMENTAL
MATTERS WHICH WERE (i) DESCRIBED OR REFERRED TO IN THE ENVIRONMENTAL REPORT OR
IN ANY ENVIRONMENTAL REPORT OBTAINED BY BUYER; OR (ii) REASONABLY DISCOVERABLE
BY PRUDENT INVESTIGATION DURING THE CONTINGENCY PERIOD; OR (iii) OTHERWISE
DISCLOSED BY SELLER TO BUYER OR DISCOVERED BY BUYER AT ANY TIME PRIOR TO THE
CLOSE OF ESCROW.
(b) EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 27(d) BELOW, THIS RELEASE INCLUDES
CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OR WHICH BUYER DOES NOT PRESENTLY
SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER'S
RELEASE TO SELLER. BUYER SPECIFICALLY ACKNOWLEDGES THAT BUYER HAS HAD THE
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL REGARDING THIS RELEASE AND HAS BEEN
ADVISED BY BUYER'S LEGAL COUNSEL CONCERNING, AND HEREBY WAIVES, THE PROVISIONS
OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: "A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS
-24-
WHICH THE CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM OR HER MUST HAVE MATERIALLY
AFFECTED THE SETTLEMENT WITH THE DEBTOR." BUYER ALSO HEREBY EXPRESSLY WAIVES ANY
RIGHT BUYER MAY HAVE UNDER ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR
EFFECT IN CONNECTION WITH THE RELEASE GIVEN IN THIS ARTICLE.
(c) IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN ADJUSTED BY
PRIOR NEGOTIATIONS TO REFLECT THAT ALL OF THE PROPERTY IS SOLD BY SELLER AND
PURCHASED BY BUYER SUBJECT TO THE FOREGOING. IT IS NOT CONTEMPLATED THAT THE
PURCHASE PRICE WILL BE INCREASED IF COSTS TO BUYER ASSOCIATED WITH THE PROPERTY
PROVE TO BE LESS THAN EXPECTED NOR WILL THE PURCHASE PRICE BE REDUCED IF THE
BUYER'S PLAN FOR THE PROPERTY LEADS TO HIGHER COST PROJECTIONS.
(d) THE FOREGOING RELEASE SHALL NOT EXTEND TO, AND SHALL EXPRESSLY EXCLUDE,
CLAIMS ARISING FROM (I) SELLER'S FRAUDULENT ACTS OR OMISSIONS, (II) SELLER'S
BREACH OF THE EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS AND OBLIGATIONS
(INCLUDING INDEMNITY OBLIGATIONS) UNDER THIS AGREEMENT AND SELLER'S CLOSING
DOCUMENTS WHICH EXPRESSLY SURVIVE THE CLOSE OF ESCROW, AND (III) THIRD PARTY
CONTRACTUAL CLAIMS RELATING TO THE PERIOD OF TIME PRIOR TO THE CLOSE OF ESCROW
AND ANY CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING PRIOR TO THE CLOSE
OF ESCROW. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS FROM THE RELEASE
DESCRIBED HEREINABOVE SHALL NOT APPLY TO THE EXTENT BUYER HAD, PRIOR TO THE
CLOSE OF ESCROW, ACTUAL KNOWLEDGE (AS DEFINED IN SECTION 6(c) ABOVE) OF ANY SUCH
CLAIM ARISING FROM CLAUSES (I), (II) AND/OR (III) HEREINABOVE, AS THE CASE MAY
BE.
Buyer's initials
/s/ TGM
Seller's initials
/s/ DSR
28. WAIVER OF JURY TRIAL. BUYER AND SELLER WAIVE TRIAL BY JURY IN RESPECT OF ANY
ACTION IN CONNECTION WITH THE TRANSACTION HEREUNDER OR THIS AGREEMENT. THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE PARTIES HERETO. THE
PARTIES HERETO HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY PERSON OR ENTITY TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO
IN