OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTIES, AND, EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT (INCLUDING THE EXPRESS REPRESENTATIONS AND
WARRANTIES CONTAINED HEREIN), THE SELLER CLOSING DOCUMENTS AND ANY OTHER
DELIVERIES OR DOCUMENTS PROVIDED TO OR KNOWN TO BUYER, WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLERS OR THEIR
AGENTS OR EMPLOYEES WITH RESPECT THERETO. UPON CLOSING, BUYER SHALL ASSUME THE
RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS
AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
BUYER'S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLERS AND/OR THEIR AFFILIATES FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT),
LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING
30
REASONABLE ATTORNEYS' FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR
UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLERS AND/OR THEIR
AFFILIATES AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS
REGARDING THE PROPERTIES.
(d)
BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS
AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, IN THIS
ARTICLE VIII, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. BUYER ACKNOWLEDGES
AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, IN THIS ARTICLE VIII, ARE AN INTEGRAL
PART OF THIS AGREEMENT, AND THAT SELLERS WOULD NOT HAVE AGREED TO SELL THE
PROPERTIES TO BUYER FOR THE AGGREGATE NET PURCHASE PRICE WITHOUT THE DISCLAIMERS
AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
IN THIS ARTICLE VIII. THE TERMS AND CONDITIONS OF THIS ARTICLE VIII WILL
EXPRESSLY SURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT AND WILL NOT
MERGE WITH THE PROVISIONS OF DOCUMENTS TO BE DELIVERED AT ANY CLOSING.
(e)
No constituent member in, manager or agent of Sellers, nor any
advisor, trustee, director, officer, employee, beneficiary, shareholder,
participant, representative or agent of any corporation or trust that is or
becomes a constituent member in Sellers (including, but not limited to, Kite
Realty Group, L.P. and Kite Realty Group Trust), shall have any personal
liability, directly or indirectly, under or in connection with this Agreement or
any agreement or document made, delivered or entered into under or pursuant to
the provisions of this Agreement or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Buyer and its
successors and assigns and, without limitation, all other persons and entities,
shall look solely to Sellers' estate and interest in the Properties (and all
profits, awards, income and other proceeds therefrom) for satisfaction of any
liability of Sellers with respect to this Agreement and all documents,