was communicated to Buyer from other
sources at the time of disclosure by Seller to Buyer and such prior knowledge
can be reasonably demonstrated by Buyer; and/or (c) is required by law to be
disclosed, including applicable securities laws. Nothing contained herein shall
preclude Buyer from disclosing all or any portion of such confidential
information or materials: (1) pursuant to or in connection with a judicial
order, governmental inquiry, subpoena, or other legal process; (2) as necessary
or appropriate in connection with, or in order to prevent, an audit; and/or (3)
in order to initiate, defend or otherwise pursue legal proceedings between the
Parties in connection with this Agreement. The covenants and agreements of Buyer
set forth in this Section 4.4(a) hereof shall survive the Closing, but only with
respect to information contained in Seller's Deliveries that pertains to the
Tenant, subject to the exceptions as set forth herein, including with respect to
any disclosures required under applicable securities laws.
15
(b)
Public Announcements. Neither Seller, nor any of Seller's
Affiliates, successors or assigns, shall make any public announcements regarding
the existence of this Agreement, the terms of this Agreement and/or the
transactions contemplated herein without the prior written approval of Buyer,
which approval may be granted or withheld in the sole and absolute discretion of
Buyer. Seller further acknowledges that in the event Buyer does not terminate
this Agreement prior to the expiration of the Investigation Period, Buyer will
be making certain disclosures to its investors in the form of a press release
statement, which disclosures will include certain material terms relating to the
Agreement and which shall be subject to Seller's prior reasonable approval to
verify the accuracy thereof. The covenants and agreements of Seller set forth in
this Section 4.4(b) hereof shall survive the Closing indefinitely.
Section 4.5
As-Is. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
WITH THE EXCEPTION OF THE SELLER'S COVENANTS SET FORTH IN SECTION 2.4 HEREOF
WITH RESPECT TO THE CONSTRUCTION WORK AND EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, BUYER HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT BUYER HAS OR WILL
HAVE, PRIOR TO THE END OF THE INVESTIGATION PERIOD, THE OPPORTUNITY TO INSPECT
AND EXAMINE THE PROPERTY. BUYER HEREBY FURTHER ACKNOWLEDGES AND AGREES THAT
BUYER IS RELYING SOLELY UPON ITS INSPECTIONS AND THAT BUYER IS PURCHASING THE
PROPERTY ON AN "AS IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS, WITHOUT
REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OF ANY KIND OR
NATURE OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT OR CONTAINED IN
THE CLOSING DOCUMENTS TO BE DELIVERED BY SELLER PURSUANT TO THIS AGREEMENT
(COLLECTIVELY "SELLER'S WARRANTIES"), BUYER IS NOT RELYING ON (AND SELLER AND
EACH OF THE OTHER SELLER PARTIES DOES HEREBY DISCLAIM AND RENOUNCE) ANY
REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR ANY OTHER
PARTY ON BEHALF OF SELLER, OTHER THAN THE SELLER'S WARRANTIES, AS TO: (i) THE
OPERATION OF THE PROPERTY OR THE INCOME POTENTIAL,