AFFILIATE OR
ANY AGENT OR EMPLOYEE THEREOF REGARDING ANY OF THE INTEREST OR ANY COMPANY
ASSETS (INCLUDING, WITHOUT LIMITATION, PHYSICAL CONDITION, SUITABILITY FOR ANY
PARTICULAR PURPOSE, COMPLIANCE WITH LAWS [INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL LAWS, OR THE ABSENCE OF HAZARDOUS SUBSTANCES THEREUPON]), AND
SELLER EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, EXCEPT FOR ANY LIMITED WARRANTIES CONTAINED IN SECTION 5
ABOVE. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 5
ABOVE, BUYER SHALL ACCEPT THE INTEREST IN ITS "AS IS", "WHERE IS", "WITH ALL
FAULTS" CONDITION, AND SELLER HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED. BUYER ACKNOWLEDGES THAT
IT IS A SOPHISTICATED REAL ESTATE BUYER WHO HAS HERETOFORE HAD OPEN ACCESS TO,
AND SUFFICIENT TIME TO REVIEW, ALL INFORMATION, DOCUMENTS, AGREEMENTS, STUDIES
AND TESTS RELATING TO THE INTEREST AND THE COMPANY ASSETS THAT BUYER DEEMED OR
DEEMS NECESSARY TO REVIEW IN ITS SOLE DISCRETION, AND HAS CONDUCTED A COMPLETE
AND THOROUGH INSPECTION, ANALYSIS AND EVALUATION OF THE INTEREST AND THE COMPANY
ASSETS, INCLUDING BUT NOT LIMITED TO ENVIRONMENTAL TESTING. BUYER HEREBY
RELEASES SELLER AND ITS CONSTITUENT OWNERS, AND THEIR RESPECTIVE AGENTS AND
EMPLOYEES, FROM ANY AND ALL LIABILITY, RESPONSIBILITY, CLAIMS, DAMAGES, LOSSES
AND EXPENSES ARISING OUT OF OR RELATED TO THE CONDITION OF THE INTEREST AND THE
COMPANY ASSETS, EXCEPT FOR ANY LIABILITY OF SELLER EXPRESSLY SET
3
FORTH HEREIN. BUYER HAS UNDERTAKEN SUCH INVESTIGATION AS BUYER DEEMED OR DEEMS
NECESSARY TO MAKE BUYER FULLY AWARE OF THE CONDITION OF THE INTEREST AND THE
COMPANY ASSETS AS WELL AS ALL FACTS, CIRCUMSTANCES AND INFORMATION WHICH MAY
AFFECT THE USE AND OPERATION OF THE COMPANY AND THE COMPANY ASSETS, AND BUYER
COVENANTS AND WARRANTS TO SELLER THAT BUYER HAS RELIED AND SHALL RELY, EXCEPT TO
THE EXTENT OF SELLER'S REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 5
ABOVE, SOLELY ON BUYER'S OWN DUE DILIGENCE INVESTIGATION IN DETERMINING TO
PURCHASE THE INTEREST. THE PROVISIONS OF THIS SECTION 8 SHALL SURVIVE THE
CLOSING OR EARLIER TERMINATION OF THIS LETTER AGREEMENT.
9.
Remedies. If Seller defaults, Buyer's sole remedy will be to sue Seller
for specific performance. If Buyer defaults, Seller's sole remedy will be to
retain the Deposit as full liquidated damages for such default of Buyer, the
parties hereto acknowledging the difficulty of ascertaining the actual damages
in the event of such a default, that it is impossible more precisely to estimate
the damages to be suffered by Seller upon the Buyer's default, that such payment
is intended not as a penalty, but as full liquidated damages and that such
amount constitutes a reasonable good faith estimate of the potential damages
arising therefrom, it being otherwise difficult or impossible to estimate such
actual damages.
10.
Refinancing. Buyer contemplates causing the Company to refinance the
existing indebtedness of the Company and its Subsidiaries at Closing (the
"Refinancing"). If having exercised good faith reasonable efforts Buyer is
unable to consummate the Refinancing on reasonable market terms, Buyer may
terminate this