NON-COMPLIANCE OF THE PROPERTIES AND THE
OTHER ASSETS WITH ALL APPLICABLE REQUIREMENTS OF LAW, INCLUDING BUT, NOT LIMITED
TO, ENVIRONMENTAL LAWS AND ZONING AND OTHER LAND USE LAWS, AND (IV) ALL MATTERS
THAT TITLE EXAMINATIONS, PHYSICAL INSPECTIONS, ENVIRONMENTAL SITE ASSESSMENTS
AND SURVEYS OF THE LAND MAY DISCLOSE.
Section 5.3.
Waivers; Release and Covenant Not to Sue.
Except as
expressly provided below in this Section 5.3, the Purchaser, for the Purchaser
and the Purchaser's successors and assigns, hereby releases all Seller Parties
from, and irrevocably and unconditionally waives all claims and liability
against the Seller Parties for or attributable to, the following:
59
(A)
ANY AND ALL STATEMENTS OR OPINIONS HERETOFORE OR HEREAFTER MADE,
OR INFORMATION FURNISHED, BY OR ON BEHALF OF ANY SELLER PARTY TO THE PURCHASER
OR ANY OF THE PURCHASER'S AGENTS; AND
(B)
ANY AND ALL LOSSES, COSTS, CLAIMS, LIABILITIES, EXPENSES, DEMANDS
OR OBLIGATIONS OF ANY KIND OR NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN AND
FORESEEN OR UNFORESEEN, ATTRIBUTABLE TO THE ASSETS, WHETHER ARISING OR ACCRUING
BEFORE, ON OR AFTER THE CLOSING AND WHETHER ATTRIBUTABLE TO EVENTS OR
CIRCUMSTANCES WHICH HAVE HERETOFORE OR MAY HEREAFTER OCCUR, INCLUDING, WITHOUT
LIMITATION, ALL LOSSES, COSTS, CLAIMS, LIABILITIES, EXPENSES, DEMANDS AND
OBLIGATIONS WITH RESPECT TO THE STRUCTURAL, PHYSICAL, OR ENVIRONMENTAL CONDITION
OF THE PROPERTIES, INCLUDING, WITHOUT LIMITATION, CLAIMS OR LIABILITIES RELATING
TO THE PRESENCE, DISCOVERY OR REMOVAL OF ANY HAZARDOUS MATERIALS IN, AT, UNDER
OR ABOUT THE PROPERTIES AND ANY OTHER MATTERS DESCRIBED IN ARTICLE 5; PROVIDED,
HOWEVER, THAT THE RELEASE, WAIVERS AND DISCLAIMERS SET FORTH IN ARTICLE 5 IS NOT
INTENDED AND SHALL NOT BE CONSTRUED TO WAIVE, AFFECT OR IMPAIR ANY RIGHTS OR
REMEDIES THAT THE PURCHASER MAY HAVE AGAINST ANY SELLER AS A RESULT OF (I) A
BREACH OF ANY OF THE EXPRESS REPRESENTATIONS AND WARRANTIES, (II) A BREACH OF
ANY COVENANT OF THE SELLERS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY OF THE
SELLERS' DOCUMENTS OR (III) ANY ALLEGED INJURY TO PERSONS OR PROPERTY ARISING
FROM EVENTS OR CIRCUMSTANCES ATTRIBUTABLE TO THE ASSETS OCCURRING ON OR PRIOR TO
THE CLOSING DATE; SUBJECT, IN EACH INSTANCE, TO THE TERMS AND LIMITATIONS ON
SELLERS' LIABILITY AS SET FORTH ELSEWHERE IN THIS AGREEMENT AND THE SELLERS'
DOCUMENTS.
The Purchaser acknowledges and agrees that (1) the Purchaser may hereafter
discover facts different from or in addition to those now (or at the Closing)
known to the Purchaser, (2) the Purchaser's agreement to release, acquit and
discharge the Seller Parties as set forth in this Article 5 shall remain in full
force and effect notwithstanding the existence or discovery of any such
additional or different facts, (3) the Purchaser knowingly waives any rights,
privileges and benefits under any federal, state or local law which may
negatively impact the validity or enforceability of any part of the releases set
forth in this Agreement (except with respect to the Retained Liabilities), and
(4) the Purchaser irrevocably covenants never to commence or prosecute, or to
collude with others to commence or prosecute, against any