OF THE PROPERTIES AND ON ALL DOCUMENTS
RELATED THERETO. WITHOUT LIMITING THE FOREGOING, BUYER ACKNOWLEDGES THAT, EXCEPT
AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE SELLER'S CLOSING DOCUMENTS,
THE SELLER PARTIES HAVE NOT MADE ANY REPRESENTATIONS, WARRANTIES OR INDEMNITIES
ON WHICH BUYER IS RELYING AS TO ANY MATTERS CONCERNING THE PROPERTIES OR THE
MEMBERSHIP INTERESTS. FURTHER, TO THE EXTENT THAT THE SELLER PARTIES OR ANY OF
THEIR AGENTS OR CONSULTANTS HAS PROVIDED TO BUYER ANY ENVIRONMENTAL REPORT OR
ANY INFORMATION FROM ANY OTHER INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS
CONCERNING ASBESTOS, RADON OR ANY HAZARDOUS SUBSTANCE, NO REPRESENTATIONS,
WARRANTIES OR INDEMNITIES ARE MADE BY ANY OF THE SELLER PARTIES WITH RESPECT TO
THE ACCURACY OR COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING
THE CONTENTS OF SUCH REPORTS.
40
AS A MATERIAL PART OF THE CONSIDERATION TO THE SELLER PARTIES FOR
THE SALE OF THE MEMBERSHIP INTERESTS AND PROPERTIES, BUYER AND, UPON CLOSING,
THE LLCS, HEREBY WAIVE AND RELEASE THE SELLER PARTIES (AND THEIR RESPECTIVE
PARTNERS, MANAGERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) FROM,
ANY AND ALL CLAIMS (OTHER THAN THOSE RELATING TO BREACH OF WARRANTIES,
REPRESENTATIONS OR COVENANTS BY THE SELLER PARTIES OR FOR INDEMNITIES OF THE
SELLER PARTIES SET FORTH IN THIS AGREEMENT OR IN THE SELLER'S CLOSING DOCUMENTS)
THAT ARE BASED DIRECTLY OR INDIRECTLY ON, ARISE FROM OR IN CONNECTION WITH, OR
ARE RELATED TO: (A) ANY PAST, PRESENT OR FUTURE CONDITION OF THE PROPERTIES,
INCLUDING, WITHOUT LIMITATION, THE PRESENCE OF HAZARDOUS SUBSTANCES AT THE
PROPERTIES, (B) ANY AND ALL STATEMENTS, REPRESENTATIONS, WARRANTIES,
DETERMINATIONS, CONCLUSIONS, ASSESSMENTS, ASSERTIONS OR ANY OTHER INFORMATION
CONTAINED IN ANY OF THE PROPERTY DOCUMENT DELIVERIES, OR (C) ANY DEFECT,
INACCURACY OR INADEQUACY IN TITLE OF THE PROPERTIES, LEGAL DESCRIPTION OF THE
PROPERTIES, COVENANTS, RESTRICTIONS, ENCUMBRANCES OR ENCROACHMENTS WHICH AFFECT
THE PROPERTIES.
BUYER HEREBY ACKNOWLEDGES AND AGREES THAT (i) BUYER MAY HEREAFTER DISCOVER FACTS
DIFFERENT FROM OR IN ADDITION TO THOSE NOW (OR AS OF THE CLOSING) KNOWN OR
BELIEVED TO BE TRUE REGARDING THE PROPERTIES AND/OR PROPERTY INFORMATION, AND
(ii) UPON CLOSING, THE BUYER'S AGREEMENT TO RELEASE, ACQUIT AND DISCHARGE THE
SELLER PARTIES, SUBJECT TO AND UPON THE TERMS AND PROVISIONS SET FORTH HEREIN,
SHALL REMAIN IN FULL FORCE AND EFFECT, NOTWITHSTANDING THE EXISTENCE OR
DISCOVERY OF ANY SUCH DIFFERENT OR ADDITIONAL FACTS; PROVIDED THAT SUCH
DIFFERENT OR ADDITIONAL FACTS WERE NOT INTENTIONALLY OR FRAUDULENTLY CONCEALED
BY THE SELLER PARTIES.
3.2.3 Changes in Representations and Warranties. From and after full
execution hereof until Closing, each Party shall promptly notify the other
Parties in writing of any events or circumstances, of which the notifying Party
has Actual Knowledge which have occurred from and after the Effective Date
hereof or which were unknown to the notifying Party as of such date and were
subsequently discovered by the notifying Party, which events or circumstances
make any of the foregoing representations and warranties untrue, incomplete or
inaccurate in any material respect.
If at or prior to the Closing, (A) Buyer has Actual Knowledge
(whether through