herein being true and
correct in all material respects, and the same shall remain true and correct in
all material respects as though made as of the Closing Date, and (ii) the
performance by the Seller of all of its covenants and obligations herein
contained, including delivery of the Seller's Closing Documents at Closing, and
(iii) in the case of Buyer's obligation to pay the Purchase Price and to
complete Closing, title to the Property shall be in the condition required under
Paragraph 4 of this Agreement, and (iv) the simultaneous closing of the sale of
Big Boulder Property to Buyer pursuant to the Big Boulder Agreement of Sale.
15
(c)
THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO THE PROPERTY AND
THE SALE THEREOF IS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND THE PARTIES ARE
NOT BOUND BY ANY AGREEMENT, UNDERSTANDINGS, PROVISIONS, CONDITIONS,
REPRESENTATIONS OR WARRANTIES OTHER THAN AS ARE EXPRESSLY SET FORTH AND
STIPULATED HEREIN.
EXCEPTING ONLY THE EXPRESS REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER CONTAINED HEREIN, THE PROPERTY IS BEING SOLD "AS IS, WHERE
IS" IN ITS PRESENT CONDITION AND WITH ALL FAULTS, AND SELLER HAS NOT MADE AND
DOES NOT MAKE ANY WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER WHATSOEVER
WITH RESPECT TO THE PROPERTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN
SELLER'S WARRANTY OF TITLE SET FORTH IN THE DEED(S) TO BE DELIVERED AT CLOSING),
ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF
ACCESS, INGRESS OR EGRESS, OPERATING HISTORY OR PROJECTIONS, VALUATIONS,
GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING
RELATED TO OR AFFECTING THE ECONOMIC, FUNCTIONAL, ENVIRONMENTAL OR PHYSICAL
CONDITION OF THE PROPERTY.
BUYER ACKNOWLEDGES THAT BUYER HAS THE RIGHT TO HAVE
THE PROPERTY INDEPENDENTLY INSPECTED AND, EXCEPT FOR THE EXPRESS REPRESENTATION
AND WARRANTIES OF SELLER CONTAINED HEREIN, BUYER IS RELYING SOLELY ON THIS
INSPECTION.
BUYER ACKNOWLEDGES THAT IT HAS CONTINUOUSLY OPERATED THE PROPERTY
PURSUANT TO THE JACK FROST LEASE SINCE DECEMBER 1, 2005.
BUYER REPRESENTS THAT
IT IS A KNOWLEDGEABLE PURCHASER OF REAL ESTATE AND THAT, EXCEPT FOR THE EXPRESS
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER CONTAINED HEREIN, IT IS
RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS, AND THAT
SELLER HAS AFFORDED BUYER AND PEAK WITH A FULL AND COMPLETE OPPORTUNITY TO MAKE
ITS OWN INDEPENDENT INVESTIGATION OF THE PROPERTY AND ALL MATTERS PERTAINING
THERETO, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AND, UPON CLOSING AND EXCEPT FOR THE EXPRESS REPRESENTATION
AND WARRANTIES OF SELLER CONTAINED HEREIN, BUYER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO ADVERSE PHYSICAL AND
ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND
INVESTIGATIONS.
AS OF THE DATE OF CLOSING, BUYER HEREBY WAIVES AND RELEASES,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, ANY PAST OR FUTURE
CLAIMS OR CAUSES OF ACTION AGAINST SELLER CONCERNING THE PROPERTY.
BUYER HEREBY
DISCLAIMS THE EXISTENCE OF OR RELIANCE