in the
facts relating to, or the accuracy of, any of the representations or warranties
of Buyer contained in this Agreement.
4.3
Survivability of Representations and Warranties. The representations and
warranties of Seller and Buyer set forth in this Agreement are remade as of the
Closing Date and shall not be deemed to be merged into or waived by the
instruments of Closing and shall survive after the Closing Date for a period of
one (1) year.
4.4
Property Conveyed "As Is". Except as may be expressly represented herein,
in the exhibits attached hereto and in the documents executed and delivered by
Seller to Buyer at Closing, Buyer agrees that the Property shall be sold, and
Buyer shall accept possession of the Property at Closing on an "as-is-where-is"
basis. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, OR IN THE
DOCUMENTS TO BE EXECUTED AND DELIVERED AT CLOSING NEITHER SELLER, NOR ANYONE
ACTING FOR OR ON
11
BEHALF OF SELLER, HAS MADE ANY REPRESENTATION, WARRANTY, PROMISE OR STATEMENT,
EXPRESS OR IMPLIED, TO BUYER, OR TO ANYONE ACTING FOR OR ON BEHALF OF BUYER,
CONCERNING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE USE OR DEVELOPMENT
THEREOF, THE STATUS OF THE LAND USE APPROVALS, AND/OR FINANCIAL SITUATION AND
ECONOMICS RELATING TO THE PROPERTY. BUYER FURTHER REPRESENTS THAT, IN ENTERING
INTO THIS AGREEMENT, BUYER HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY,
PROMISE OR STATEMENT, EXPRESS OR IMPLIED, OF SELLER, OR ANYONE ACTING FOR OR ON
BEHALF OF SELLER, OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OR IN THE
DOCUMENTS TO BE EXECUTED AND DELIVERED AT CLOSING AND THAT ALL MATTERS
CONCERNING THE PROPERTY HAVE BEEN OR SHALL BE INDEPENDENTLY VERIFIED BY BUYER
PRIOR TO THE CLOSING, AND THAT BUYER SHALL PURCHASE THE PROPERTY BASED ON
BUYER'S OWN PRIOR DUE DILIGENCE INVESTIGATIONS, INSPECTIONS AND EXAMINATIONS OF
THE PROPERTY AND THE USE AND OCCUPANCY RELATING THERETO (OR BUYER'S ELECTION NOT
TO DO SO); AND THAT BUYER IS PURCHASING THE PROPERTY IN AN "AS-IS" AND "WITH ALL
FAULTS" PHYSICAL CONDITION, IN AN "AS-IS" AND "WITH ALL FAULTS" STATE OF REPAIR,
AND IN AN "AS IS" CONDITION RELATING TO ALL LAND USE APPROVALS. EXCEPT AS
EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, BUYER DOES HEREBY WAIVE, AND SELLER
DOES HEREBY DISCLAIM, ALL WARRANTIES OF ANY TYPE OR KIND WHATSOEVER WITH RESPECT
TO THE PROPERTY, WHETHER EXPRESS OR IMPLIED, INCLUDING, BY WAY OF DESCRIPTION
BUT NOT LIMITATION, THOSE OF FITNESS FOR A PARTICULAR PURPOSE AND USE,
TENANTABILITY OR HABITABILITY. FURTHER, BUYER DOES HEREBY RELEASE AND FOREVER
DISCHARGE, AND WAIVE ITS RIGHTS TO RECOVER FROM, SELLER AND SELLER'S MEMBERS,
AGENTS, REPRESENTATIVES, (COLLECTIVELY, "SELLER PARTIES") OF AND FROM ANY AND
ALL CLAIMS, ACTIONS, CAUSES OF ACTIONS, DEMANDS, RIGHTS, LIABILITIES, DAMAGES,
LOSSES, COSTS, EXPENSES, AND COMPENSATION WHATSOEVER, DIRECT OR INDIRECT, KNOWN
OR UNKNOWN, FORESEEN OR UNFORSEEN, THAT BUYER AND ANY PERSON OR ENTITY CLAIMING
BY, THROUGH OR UNDER BUYER, MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER
AND/OR ANY OF SELLER PARTIES, ARISING FROM THE PHYSICAL CONDITION OF THE