WITHOUT LIMITING THE FOREGOING BUT SUBJECT TO EACH BUYER'S REMEDIES
FOR FRAUD, ANY BREACH BY SELLERS OF THEIR EXPRESS REPRESENTATIONS OR WARRANTIES
HEREIN OR IN THE CONVEYANCES, AND WITH RESPECT TO SELLERS' INDEMNITIES PURSUANT
TO SECTION 10.01, EACH BUYER WAIVES ANY RIGHT TO
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RECOVER FROM SELLERS AND FOREVER RELEASES AND DISCHARGES SELLERS AND AGREES TO
RELEASE, INDEMNIFY, DEFEND AND HOLD SELLERS INDEMNITEES HARMLESS FROM ANY AND
ALL DAMAGES, CLAIMS, LOSSES, LIABILITIES, PENALTIES, FINES, LIENS, JUDGMENTS,
COSTS AND EXPENSES WHATSOEVER, INCLUDING ATTORNEYS' FEES AND COSTS, WHETHER
DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT MAY ARISE ON
ACCOUNT OF OR IN ANY WAY BE CONNECTED WITH THE PHYSICAL AND ENVIRONMENTAL
CONDITION OF THE ASSETS OR USE OF THE PROPERTY DESCRIBED IN THE REAL PROPERTY
LEASES AT THE CLOSING OR ANY LEGAL REQUIREMENTS APPLICABLE TO THE ASSETS,
REGARDLESS OF WHETHER ARISING DURING THE PERIOD OF, OR FROM, OR IN CONNECTION
WITH, SELLERS' OWNERSHIP OF THE ASSETS OR USE OF THE PROPERTY DESCRIBED IN THE
REAL PROPERTY LEASES AT OR PRIOR TO THE CLOSING, AND REGARDLESS OF WHETHER
ATTRIBUTABLE TO THE STRICT LIABILITY OF SELLERS OR TO THE SOLE, JOINT,
COMPARATIVE OR CONCURRENT NEGLIGENCE OF SELLERS, EVEN IF CAUSED BY THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLERS PRIOR TO CLOSING.
(c)WITH RESPECT TO THIS AGREEMENT, THE PARTIES AGREE THAT THE PROVISIONS SET OUT
IN THIS ARTICLE 10 COMPLY WITH THE REQUIREMENT, KNOWN AS THE EXPRESS NEGLIGENCE
RULE, TO EXPRESSLY STATE IN A CONSPICUOUS MANNER TO AFFORD FAIR AND ADEQUATE
NOTICE THAT THIS AGREEMENT HAS PROVISIONS REQUIRING BUYER TO BE RESPONSIBLE FOR
THE NEGLIGENCE (WHETHER GROSS, SOLE, JOINT, ACTIVE, PASSIVE, COMPARATIVE OR
CONCURRENT), STRICT LIABILITY, OR OTHER FAULT OF MEMBERS OF THE SELLER
INDEMNIFIED PARTIES. BUYER REPRESENTS TO EACH SELLER INDEMNIFIED PERSON (A) THAT
BUYER HAS CONSULTED AN ATTORNEY CONCERNING THIS AGREEMENT OR, IF IT HAS NOT
CONSULTED AN ATTORNEY, THAT BUYER WAS PROVIDED THE OPPORTUNITY AND HAD THE
ABILITY TO SO CONSULT, BUT MADE AN INFORMED DECISION NOT TO DO SO AND (B) THAT
EACH BUYER FULLY UNDERSTANDS ITS OBLIGATIONS UNDER THIS AGREEMENT.
10.06Tax Matters
(a)Apportionment of Tax Liability
(i)Sellers shall be allocated and bear all Taxes attributable to (i) any tax
period (or portion thereof) ending prior to the Effective Time and (ii) the
portion of any Straddle Period ending prior to the Effective Time. Any
deductions, credits or refunds pertaining to the aforementioned Taxes, no matter
when received, shall belong to Sellers. Buyers shall be allocated and bear all
Taxes attributable to (i) any tax period (or portion thereof) beginning on or
after the Effective Time and (ii) the portion of any Straddle Period beginning
on the Effective Time. Any deductions, credits or refunds pertaining to the
aforementioned Taxes, no matter when received, shall belong to Buyers.
(ii)For purposes of determining the allocations described in
Section 10.06(a)(i), (i) Taxes that are based upon or related to income or
receipts or imposed on a transactional basis shall be allocated to the period
(or portion thereof) in
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