and correct in
all respects as of that specified date) except where the failure of such
representations and warranties to be true and correct would not have a material
adverse effect on Buyer's ability to consummate the transactions contemplated
hereby.
(b)
Buyer shall have duly performed and complied in all material respects
with all agreements, covenants and conditions required by this Agreement and
each of the other Transaction Documents to be performed or complied with by it
prior to or on the Closing Date.
(c)
Buyer shall have delivered to Seller the Purchase Price less the Earnest
Funds, duly executed counterparts to the Transactions Documents (other than this
Agreement) and such other documents and deliveries set forth in Section 3.02(b).
(d)
Seller shall have received a certificate, dated the Closing Date and
signed by a duly authorized officer of Buyer, that each of the conditions set
forth in Section 8.03(a) and Section 8.03(b) have been satisfied (the "Buyer
Closing Certificate").
ARTICLE IX
ACKNOWLEDGEMENTS
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE PURCHASED ASSETS ARE BEING
SOLD IN AN "AS IS, WHERE IS" CONDITION AND "WITH ALL FAULTS" AS OF THE DATE OF
THIS AGREEMENT AND AS OF CLOSING. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE IV,
NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE OR ARE MADE AND NO
RESPONSIBILITY HAS BEEN OR IS ASSUMED BY SELLER OR BY ANY PARTNER, OFFICER,
PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF OF
SELLER AS TO (I) THE CONDITION OR STATE OF REPAIR OF THE PURCHASED ASSETS; (II)
THE COMPLIANCE OR NON-COMPLIANCE OF THE PURCHASED ASSETS WITH ANY APPLICABLE
LAWS, REGULATIONS OR ORDINANCES (INCLUDING, WITHOUT LIMITATION, ANY
ENVIRONMENTAL LAWS, REGULATIONS, GOVERNMENTAL ORDERS OR PERMITS APPLICABLE TO
THE FACILITY SITE OR REAL PROPERTY, OR APPLICABLE ZONING, BUILDING OR
DEVELOPMENT CODES); (III) THE VALUE, EXPENSE OF OPERATION, OR INCOME POTENTIAL
OF THE PURCHASED ASSETS; (IV) ANY OTHER FACT OR CONDITION WHICH HAS OR MIGHT
AFFECT THE PURCHASED ASSETS OR THE CONDITION, STATE OF REPAIR, COMPLIANCE,
VALUE, EXPENSE OF OPERATION OR INCOME POTENTIAL OF THE PURCHASED ASSETS OR ANY
PORTION THEREOF; (V) WHETHER THE PURCHASED ASSETS CONTAINS ASBESTOS OR
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HAZARDOUS SUBSTANCES OR PERTAINING TO THE EXTENT, LOCATION OR NATURE OF SAME;
(VI) GEOLOGICAL CONDITIONS, SOIL CONDITIONS, FLOOD PLAIN OR SPECIAL FLOOD
HAZARD; OR (VII) OR ANY OTHER MATTER OR THING AFFECTING OR RELATED TO ANY OF THE
PURCHASED ASSETS OR THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
HABITABILITY, WARRANTIES OF MERCHANTABILITY AND/OR OF FITNESS FOR A PARTICULAR
PURPOSE). THE PARTIES AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE
MADE BETWEEN THEM OR THEIR RESPECTIVE AGENTS OR REPRESENTATIVES ARE MERGED IN
THE AGREEMENT AND THE EXHIBITS HERETO ANNEXED, WHICH ALONE FULLY AND COMPLETELY
EXPRESS THEIR AGREEMENT, AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER
FULL INVESTIGATION, OR WITH THE PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED
FOR FULL INVESTIGATION, NEITHER PARTY IS RELYING UPON ANY STATEMENT OR
REPRESENTATION BY THE OTHER UNLESS SUCH STATEMENT OR REPRESENTATION IS
SPECIFICALLY EMBODIED IN THIS AGREEMENT