Common use of AS-IS SALE; DISCLAIMERS; RELEASE Clause in Contracts

AS-IS SALE; DISCLAIMERS; RELEASE. IT IS UNDERSTOOD AND AGREED THAT, UNLESS EXPRESSLY STATED HEREIN, SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE REQUIRED ASSETS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Portions of this exhibit were omitted and filed separately with the Secretary of the Securities and Exchange Commission pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. Such portions are marked by [****]. Exhibit 10.12 (b) BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS.” BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE REQUIRED ASSETS OR RELATING THERETO MADE OR FURNISHED BY SELLER OR ITS REPRESENTATIVES, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS EXPRESSLY STATED HEREIN. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE REQUIRED ASSETS ARE BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS.”

AS-IS SALE; DISCLAIMERS; RELEASE. IT IS UNDERSTOOD AND AGREED THAT, UNLESS EXPRESSLY STATED HEREIN, SELLER GMAR IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE REQUIRED ASSETS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Portions of this exhibit were omitted and filed separately with the Secretary of the Securities and Exchange Commission pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. Such portions are marked by [****]. Exhibit 10.12 (b) BUYER THE COMPANY AND EXPL EACH ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER CLOSING, GMAR SHALL SELL AND CONVEY ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO BUYER THE ASSETS TO THE COMPANY AND BUYER THE COMPANY SHALL ACCEPT THE PROPERTY ASSETS “AS IS, WHERE IS, WITH ALL FAULTS.” BUYER NEITHER THE COMPANY NOR EXPL HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER GMAR IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE REQUIRED ASSETS OR RELATING THERETO MADE OR FURNISHED BY SELLER GMAR OR ITS REPRESENTATIVES, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS EXPRESSLY STATED HEREIN. BUYER THE COMPANY AND EXPL EACH ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE ISSUANCE OF THE COMPANY GMAR SHARES REFLECTS AND TAKES INTO ACCOUNT THAT THE REQUIRED ASSETS ARE BEING SOLD CONTRIBUTED “AS IS, WHERE IS, WITH ALL FAULTS.”” EACH OF THE COMPANY AND EXPL ACKNOWLEDGES TO GMAR THAT IT HAS HAD THE OPPORTUNITY TO CONDUCT PRIOR TO CLOSING SUCH INSPECTIONS AND INVESTIGATIONS OF THE ASSETS AS IT DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE ASSETS AND THE COMPANY’S ACQUISITION THEREOF. EACH OF THE COMPANY AND EXPL FURTHER WARRANTS AND REPRESENTS TO GMAR THAT IT WILL RELY SOLELY ON ITS OWN REVIEW AND OTHER INSPECTIONS AND INVESTIGATIONS IN THIS TRANSACTION AND NOT UPON THE INFORMATION PROVIDED BY OR ON BEHALF OF GMAR, OR ITS AGENTS, EMPLOYEES OR REPRESENTATIVES WITH RESPECT THERETO. EACH OF THE COMPANY AND EXPL HEREBY ASSUMES THE RISK THAT ADVERSE MATTERS MAY NOT HAVE BEEN REVEALED BY ITS REVIEW AND INSPECTIONS AND INVESTIGATIONS. EACH OF THE COMPANY AND EXPL ACKNOWLEDGES THAT SOME IP ASSETS MAY CONTAIN THIRD-PARTY INTELLECTUAL PROPERTY THAT MAY HAVE BEEN LICENSED BY GMAR OR OTHERWISE ACQUIRED BY GMAR. EACH OF THE COMPANY AND EXPL UNDERSTANDS THAT GMAR MAY BE UNABLE TO TRANSFER INTELLECTUAL PROPERTY BELONGING TO A THIRD-PARTY WITHOUT THE EXPRESS WRITTEN CONSENT OF THAT PARTY, WHICH MAY NOT BE OBTAINED OR SOUGHT BY GMAR AS A PART OF THIS AGREEMENT. THE COMPANY SHALL ACCEPT FULL RESPONSIBILITY FOR COMMUNICATING WITH THIRD PARTIES WHOSE INTELLECTUAL PROPERTY MAY BE INCLUDED IN THE ASSETS TRANSFERRED HEREBY AND SHALL BE RESPONSIBLE FOR ANY AND ALL LICENSING OR OTHER FEES, COSTS, EXPENSES OR CHARGES THAT MAY BE ASSOCIATED WITH USING SAID ASSETS UNDER APPLICABLE LAW.

AS-IS SALE; DISCLAIMERS; RELEASE. IT IS UNDERSTOOD AND AGREED THAT, UNLESS EXPRESSLY STATED HEREIN, SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE REQUIRED ASSETSEQUIPMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Portions of this exhibit were omitted and filed separately with the Secretary of the Securities and Exchange Commission pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. Such portions are marked by [****]. Exhibit 10.12 (b) BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING CLOSING, SELLER SHALL SELL AND CONVEY ALL OF ITS RIGHT, TITLE AND INTEREST IN AND TO THE EQUIPMENT TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY EQUIPMENT “AS IS, WHERE IS, WITH ALL FAULTS.” BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE REQUIRED ASSETS EQUIPMENT OR RELATING THERETO MADE OR FURNISHED BY SELLER OR ITS REPRESENTATIVES, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, EXCEPT AS EXPRESSLY STATED HEREIN. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE REQUIRED ASSETS ARE EQUIPMENT IS BEING SOLD “AS IS, WHERE IS, WITH ALL FAULTS.”” BUYER ACKNOWLEDGES TO SELLER THAT BUYER HAS HAD THE OPPORTUNITY TO CONDUCT PRIOR TO CLOSING SUCH INSPECTIONS AND INVESTIGATIONS OF THE EQUIPMENT AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE EQUIPMENT AND ITS ACQUISITION THEREOF. BUYER FURTHER WARRANTS AND REPRESENTS TO SELLER THAT BUYER WILL RELY SOLELY ON ITS OWN REVIEW AND OTHER INSPECTIONS AND INVESTIGATIONS IN THIS TRANSACTION AND NOT UPON THE INFORMATION PROVIDED BY OR ON BEHALF OF SELLER, OR ITS AGENTS, EMPLOYEES OR REPRESENTATIVES WITH RESPECT THERETO. BUYER HEREBY ASSUMES THE RISK THAT ADVERSE MATTERS INCLUDING, BUT NOT LIMITED TO, LATENT OR PATENT DEFECTS, ADVERSE PHYSICAL OR OTHER ADVERSE MATTERS, MAY NOT HAVE BEEN REVEALED BY BUYER’S REVIEW AND INSPECTIONS AND INVESTIGATIONS. BUYER ACKNOWLEDGES THAT SOME ASSETS DESCRIBED IN EXHIBIT A MAY CONTAIN THIRD-PARTY INTELLECTUAL PROPERTY THAT MAY HAVE BEEN LICENSED BY SELLER OR OTHERWISE ACQUIRED BY SELLER. BUYER UNDERSTANDS THAT SELLER MAY BE UNABLE TO TRANSFER INTELLECTUAL PROPERTY BELONGING TO A THIRD-PARTY WITHOUT THE EXPRESS WRITTEN CONSENT OF THAT PARTY, WHICH MAY NOT BE OBTAINED OR SOUGHT BY SELLER AS A PART OF THIS AGREEMENT. BUYER SHALL ACCEPT FULL RESPONSIBILITY FOR COMMUNICATING WITH THIRD-PARTIES WHOSE INTELLECTUAL PROPERTY MAY BE INCLUDED IN THE EQUIPMENT ASSETS TRANSFERRED HEREBY AND SHALL BE RESPONSIBLE FOR ANY AND ALL LICENSING OR OTHER FEES, COSTS, EXPENSES OR CHARGES THAT MAY BE ASSOCIATED WITH USING SAID ASSETS UNDER APPLICABLE LAW.

AS-IS SALE; DISCLAIMERS; RELEASE. IT IS UNDERSTOOD AT OR BEFORE THE END OF INSPECTION PERIOD, BUYER WILL HAVE APPROVED THE PHYSICAL AND AGREED THATENVIRONMENTAL CHARACTERISTICS AND CONDITION OF EACH INDIVIDUAL PROPERTY COMPRISING THE PROJECT, UNLESS AS WELL AS THE ECONOMIC CHARACTERISTICS OF THE PROJECT. BUYER HEREBY WAIVES ANY AND ALL DEFECTS IN THE PHYSICAL, ENVIRONMENTAL AND ECONOMIC CHARACTERISTICS AND CONDITION OF THE PROJECT WHICH WOULD BE DISCLOSED BY SUCH INSPECTION. BUYER FURTHER ACKNOWLEDGES THAT NEITHER SELLER NOR ANY OF SELLER’S PARTNERS, MEMBERS, MANAGERS, OFFICERS OR DIRECTORS, NOR SELLER’S EMPLOYEES, AGENTS, REPRESENTATIVES, OR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF SELLER (HEREAFTER, FOR THE PURPOSE OF THIS SECTION, SUCH PERSONS AND ENTITIES ARE INDIVIDUALLY AND COLLECTIVELY REFERRED TO AS THE “SELLER”), EXCEPT AS OTHERWISE EXPRESSLY STATED HEREINPROVIDED ELSEWHERE HEREIN AND IN ANY CLOSING DOCUMENTS DELIVERED BY SELLER TO BUYER IN CONNECTION WITH THIS AGREEMENT, SELLER IS NOT MAKING AND HAS NOT AT ANY TIME HAVE MADE ANY REPRESENTATIONS, WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, AGREEMENTS (EXPRESS OR IMPLIED) BY OR ON BEHALF OF SELLER AS TO ANY MATTERS CONCERNING THE PROJECT, THE ECONOMIC RESULTS TO BE OBTAINED OR PREDICTED, OR THE PRESENT USE THEREOF OR THE SUITABILITY FOR BUYER’S INTENDED USE OF THE PROJECT, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING: SUITABILITY OF THE TOPOGRAPHY; THE AVAILABILITY OF WATER RIGHTS OR UTILITIES; THE PRESENT AND FUTURE ZONING, SUBDIVISION AND ANY AND ALL OTHER LAND USE MATTERS; THE CONDITION, INCLUDING ENVIRONMENTAL CONDITION, OF THE SOIL, SUBSOIL, OR GROUNDWATER: THE PURPOSE(S) TO WHICH THE PROJECT IS SUITED; DRAINAGE; FLOODING; ACCESS TO PUBLIC ROADS; OR PROPOSED ROUTES OF ROADS OR EXTENSIONS THEREOF. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED ELSEWHERE HEREIN AND IN ANY CLOSING DOCUMENTS DELIVERED BY SELLER TO BUYER IN CONNECTION WITH RESPECT THIS AGREEMENT, BUYER ACKNOWLEDGES AND AGREES THAT THE PROJECT IS TO BE PURCHASED, CONVEYED AND ACCEPTED BY BUYER IN ITS PRESENT CONDITION, “AS IS” AND THAT NO PATENT OR LATENT DEFECT IN THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY WHETHER OR NOT KNOWN OR DISCOVERED, SHALL AFFECT THE RIGHTS OF EITHER PARTY HERETO. ANY BUILDING DOCUMENTS OR OTHER DOCUMENTS FURNISHED TO BUYER BY SELLER RELATING TO THE REQUIRED ASSETSPROJECT INCLUDING, WITHOUT LIMITATION, RENT ROLLS, SERVICE AGREEMENTS, MANAGEMENT CONTRACTS, MAPS, SURVEYS, STUDIES, PRO FORMAS, REPORTS AND OTHER INFORMATION, INCLUDING BUT NOT LIMITED TOTO THE DUE DILIGENCE ITEMS, ANY WARRANTIES OR REPRESENTATIONS SHALL BE DEEMED FURNISHED AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Portions of this exhibit were omitted and filed separately with the Secretary of the Securities and Exchange Commission pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934. Such portions are marked by [****]. Exhibit 10.12 (b) BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY COURTESY TO BUYER AND BUYER SHALL ACCEPT BUT WITHOUT WARRANTY FROM SELLER, EXCEPT AS EXPRESSLY SET FORTH ELSEWHERE IN THIS AGREEMENT. ALL WORK DONE IN CONNECTION WITH PREPARING THE PROPERTY “AS ISFOR THE USES INTENDED BY BUYER INCLUDING ANY AND ALL FEES, WHERE ISSTUDIES, REPORTS, APPROVALS, PLANS, SURVEYS, PERMITS, AND ANY EXPENSES WHATSOEVER NECESSARY OR DESIRABLE IN CONNECTION WITH ALL FAULTS.” BUYER’S ACQUIRING, DEVELOPING, USING AND/OR OPERATING THE PROJECT SHALL BE OBTAINED AND PAID FOR BY, AND SHALL BE THE SOLE RESPONSIBILITY OF BUYER. BUYER HAS NOT INVESTIGATED AND HAS KNOWLEDGE OF OPERATIVE OR PROPOSED GOVERNMENTAL LAWS AND REGULATIONS INCLUDING LAND USE LAWS AND REGULATIONS TO WHICH THE PROJECT MAY BE SUBJECT AND SHALL ACQUIRE THE PROJECT UPON THE BASIS OF ITS REVIEW AND DETERMINATION OF THE APPLICABILITY AND EFFECT OF SUCH LAWS AND REGULATIONS. BUYER HAS NEITHER RECEIVED NOR RELIED UPON ANY REPRESENTATIONS CONCERNING SUCH LAWS AND WILL NOT RELY ONREGULATIONS FROM SELLER. EXCEPT FOR THOSE COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH HEREIN, BUYER, ON BEHALF OF ITSELF AND ITS EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS ATTORNEYS AND OTHER REPRESENTATIVES, AND EACH OF THEM, HEREBY RELEASES SELLER IS NOT LIABLE FOR FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES AND LIABILITIES OF ANY NATURE WHATSOEVER, WHETHER ALLEGED UNDER ANY STATUTE, COMMON LAW OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE REQUIRED ASSETS OR RELATING THERETO MADE OR FURNISHED BY SELLER OR ITS REPRESENTATIVES, TO WHOMEVER MADE OR GIVENOTHERWISE, DIRECTLY OR INDIRECTLY, ORALLY ARISING OUT OF OR IN WRITINGRELATED TO THE CONDITION, EXCEPT AS EXPRESSLY STATED HEREINOPERATION OR ECONOMIC PERFORMANCE OF THE PROJECT. BUYER ALSO FURTHER HEREBY IRREVOCABLY WAIVES ANY CLAIMS FOR CONTRIBUTION, COST RECOVERY, DAMAGES, PENALTIES, OR ANY OTHER CLAIM UNDER COMMON LAW OR ENVIRONMENTAL LAW (INCLUDING, WITHOUT LIMITATION, CERCLA), ARISING OUT OF THE HANDLING, STORAGE, DISPOSAL OR RELEASE OF HAZARDOUS SUBSTANCES (AS THAT TERM IS DEFINED HEREIN) ON, AT OR UNDER THE PROJECT, REGARDLESS WHEN THE CIRCUMSTANCES GIVING RISE TO SUCH CLAIM MAY HAVE OCCURRED, EXISTED, OR ORIGINATED. ALL OF THE PROVISIONS OF THIS SECTION 7.3.2 SHALL SURVIVE THE CLOSING. BUYER HEREBY SPECIFICALLY ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS BUYER CAREFULLY REVIEWED THIS SECTION 7.3.2 AND TAKES INTO ACCOUNT DISCUSSED ITS IMPORT WITH LEGAL COUNSEL, IS FULLY AWARE OF ITS CONSEQUENCES, AND THAT THE REQUIRED ASSETS PROVISIONS OF THIS SECTION 7.3.2 ARE BEING SOLD “A MATERIAL PART OF THIS AGREEMENT. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS ISFOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHERE IS, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH ALL FAULTSTHE DEBTOR.”" /s/ DP Buyer's Initials