AND ASSIGNS OF
EACH OF THEM (COLLECTIVELY, THE "CONTRIBUTOR PARTIES") HARMLESS FROM AND AGAINST
ANY AND ALL LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES, LIABILITIES, DEMANDS,
SUITS, AND OBLIGATIONS TO THIRD PARTIES, TOGETHER WITH ALL LOSSES, PENALTIES,
COSTS AND EXPENSES RELATING TO ANY OF THE FOREGOING (INCLUDING BUT NOT LIMITED
TO COURT COSTS AND REASONABLE ATTORNEYS' FEES), ARISING OUT OF ANY INSPECTIONS,
INVESTIGATIONS, EXAMINATIONS, SAMPLINGS OR TESTS CONDUCTED BY BKP OR ANY OF THE
LICENSEE PARTIES, WHETHER PRIOR TO OR AFTER THE DATE HEREOF, WITH RESPECT TO THE
PROPERTY. NOTWITHSTANDING THE FOREGOING, BKP SHALL NOT BE LIABLE TO CONTRIBUTOR
PARTIES FOR ANY LIABILITIES OR LOSSES ARISING OUT OF ANY EXISTING PHYSICAL OR
ENVIRONMENTAL CONDITIONS AT THE PROPERTY.
Section 5.4
Contribution "AS IS".
(a)
In addition to BKP's inspection and review rights as set
forth above, BKP may investigate any and all other aspects of the Property as it
may desire, including zoning, land use, environmental, economic and may conduct
such other examinations, inspections and investigations of the Property or the
use or operation thereof which BKP, in BKP's sole discretion, determines to
make, consistent with the terms of this Agreement.
(b)
THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN
NEGOTIATED BETWEEN CONTRIBUTOR AND BKP.
THIS AGREEMENT REFLECTS THE MUTUAL
AGREEMENT OF CONTRIBUTOR AND BKP, AND BKP HAS THE RIGHT TO CONDUCT ITS OWN
INDEPENDENT EXAMINATION OF THE PROPERTY.
OTHER THAN THE MATTERS REPRESENTED IN
THIS AGREEMENT AND IN THE CLOSING DOCUMENTATION
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DELIVERED BY CONTRIBUTOR IN CONNECTION WITH THE CLOSING, BKP HAS NOT RELIED UPON
AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR
WARRANTY OF CONTRIBUTOR OR ANY OF CONTRIBUTOR'S AGENTS OR REPRESENTATIVES, AND
BKP HEREBY ACKNOWLEDGES THAT NO SUCH OTHER REPRESENTATIONS OR WARRANTIES HAVE
BEEN MADE.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE CLOSING DOCUMENTATION
DELIVERED BY CONTRIBUTOR IN CONNECTION WITH THE CLOSING, CONTRIBUTOR
SPECIFICALLY DISCLAIMS, AND NEITHER CONTRIBUTOR NOR ANY OF CONTRIBUTOR'S
AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR
ASSURANCE WHATSOEVER TO BKP, AND NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY
KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY CONTRIBUTOR OR RELIED
UPON BY BKP WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR,
CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF,
INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF
MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES
OF MATERIALS, (d) ANY RIGHTS OF BKP UNDER APPROPRIATE STATUTES TO CLAIM
DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BKP FOR DAMAGES BECAUSE OF
DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS, (f) THE
FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) ANY OPEN BUILDING
PERMITS OR OUTSTANDING BUILDING CODE VIOLATIONS RELATED TO THE PROPERTY, WHICH
EXCEPT AS OTHERWISE SET FORTH HEREIN BKP AGREES CONTRIBUTOR SHALL HAVE NO
OBLIGATION TO CURE, AND (h) THE COMPLIANCE OR