Common use of Waiver; Release Clause in Contracts

Waiver; Release. EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS TO BE DELIVERED AT CLOSING (COLLECTIVELY, HEREINAFTER THE "SELLER'S REPRESENTATIONS"), IT IS UNDERSTOOD AND AGREED THAT 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 PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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”, SUBJECT TO SELLER'S REPRESENTATIONS. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS”, SUBJECT TO SELLER'S REPRESENTATIONS. EXCEPT TO THE EXTENT OF SELLER'S REPRESENTATIONS, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY OFFERING MEMORANDUM DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SELLER'S REPRESENTATIONS. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER, SELLER’S AFFILIATED ENTITIES AND EACH OF THE RESPECTIVE MEMBERS, PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS OF SELLER AND SELLER’S AFFILIATED ENTITIES (COLLECTIVELY WITH SELLER AND SELLER’S AFFILIATED ENTITIES, “SELLER PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER, SELLER’S AFFILIATED ENTITIES AND SELLER PARTIES AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, OTHER THAN PURSUANT TO SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03 HAS BEEN EXTENSIVELY NEGOTIATED BY SELLER AND BUYER, AND REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOOSING HAVING EXPERIENCE AND KNOWLEDGE IN HANDLING COMMERCIAL REAL ESTATE TRANSACTIONS OF THE NATURE AND CHARACTER AS CONTEMPLATED HEREIN, AND BUYER IS RELYING SOLELY ON THE ADVICE OF ITS LEGAL COUNSEL IN ENTERING INTO THIS AGREEMENT AND COMPLETING THE TRANSACTION CONTEMPLATED HEREIN. THE PARTIES ACKNOWLEDGE THAT THE PARTIES AND THEIR RESPECTIVE LEGAL COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT OR ANY AMENDMENTS OR EXHIBITS HERETO. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS AWARE THAT THE PROVISIONS OF THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03, LIMIT, RESTRICT AND MAY FORECLOSE BUYER’S ABILITY TO PURSUE ANY REMEDY OR CAUSE OF ACTION AGAINST SELLER IN CONNECTION WITH THIS TRANSACTION OR ANY MATTER AFFECTING THE PROPERTY, OTHER THAN SELLER'S REPRESENTATIONS. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION HEREOF TO THE CONTRARY, THE WAIVER AND RELEASE SET FORTH IN THIS SECTION 6.03 BY BUYER SHALL NOT APPLY TO ANY CLAIM WITH RESPECT TO ANY FRAUDULENT OR PROVEN INTENTIONAL MISREPRESENTATION BY SELLER. FURTHER NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A) BUYER SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY ALLEGING THAT SELLER (OR SOMEONE ACTING ON SELLER’S BEHALF), NOT BUYER, IS LIABLE FOR SUCH CLAIMS AND BUYER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR GOVERNMENTAL OR THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A RESULT OF ANY ACT OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER’S BEHALF PRIOR TO THE CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 6.03 SHALL NOT APPLY TO THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND OCCURRING DURING SELLER’S OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND BUYER HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE PROVISIONS SET FORTH IN SECTION 6.03 ARE NOT INTENDED TO BE AND SHALL NOT BE CONSTRUED AS A WAIVER OF SIMILAR CLAIMS AGAINST ANY OF SELLER’S PREDECESSORS-IN-TITLE WITH RESPECT TO THE PROPERTY OR THE PROJECT (“PREDECESSORS”), OR ANY SUCH PREDECESSOR’S OFFICERS, MEMBERS, MANAGERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY OTHER PERSON ACTING ON BEHALF OF ANY SUCH PREDECESSORS, AND (II) IF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL ENTITY OR AGENCY, SHALL THREATEN OR FILE ANY CLAIM OR ACTION FOR DAMAGES, CLEAN-UP, OR OTHERWISE, AGAINST BUYER OR ANY OF ITS AFFILIATES WITH RESPECT TO THE PROPERTY OR THE PROJECT WITH RESPECT TO MATTERS OCCURING PRIOR TO CLOSING FOR WHICH SELLER HAS ANY LIABILITY OR RESPONSIBILITY, BUYER SHALL HAVE THE RIGHT TO INTERPLEAD, CROSS CLAIM OR OTHERWISE BRING SELLER INTO SUCH SUIT OR ACTION TO ADDRESS THE CLAIMS OF SUCH THIRD PARTY. THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.

Waiver; Release. EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, COVENANTS AND INDEMNITIES AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS TO BE DELIVERED AT CLOSING (COLLECTIVELY, HEREINAFTER THE "SELLER'S REPRESENTATIONS")AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT 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 PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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”, SUBJECT TO SELLER'S THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER SET FORTH HEREIN AND IN ANY DOCUMENT DELIVERED BY SELLER AT CLOSING. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS”, SUBJECT TO SELLER'S REPRESENTATIONS. .” EXCEPT TO THE EXTENT OF SELLER'S REPRESENTATIONSEXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR ANY DOCUMENT DELIVERED BY SELLER AT CLOSING, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY OFFERING MEMORANDUM DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER SELLER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, CONDUCTED SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SELLER'S SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER, SELLER’S AFFILIATED ENTITIES AND EACH OF THE RESPECTIVE MEMBERS, PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS OF SELLER AND SELLER’S AFFILIATED ENTITIES AFFILIATES (COLLECTIVELY WITH SELLER AND SELLER’S AFFILIATED ENTITIESAFFILIATES, “SELLER PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR 6 COMMERCIAL & INVESTMENT REAL ESTATE PURCHASE & SALES AGREEMENT (CONTINUED) CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER, SELLER’S AFFILIATED ENTITIES AND SELLER PARTIES AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, OTHER THAN PURSUANT TO SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT OR ANY DOCUMENT DELIVERED BY SELLER AT THE CLOSING. THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03 13, HAS BEEN EXTENSIVELY NEGOTIATED BY SELLER AND BUYER, AND REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOOSING HAVING EXPERIENCE AND KNOWLEDGE IN HANDLING COMMERCIAL REAL ESTATE TRANSACTIONS OF THE NATURE AND CHARACTER AS CONTEMPLATED HEREIN, AND BUYER IS RELYING SOLELY ON THE ADVICE OF ITS LEGAL COUNSEL IN ENTERING INTO THIS AGREEMENT AND COMPLETING THE TRANSACTION CONTEMPLATED HEREIN. THE PARTIES ACKNOWLEDGE THAT THE PARTIES AND THEIR RESPECTIVE LEGAL COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT OR ANY AMENDMENTS OR EXHIBITS HERETO. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS AWARE THAT THE PROVISIONS OF THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.0300, LIMITXXXXX, RESTRICT XXXXXXXX AND MAY FORECLOSE BUYER’S ABILITY TO PURSUE ANY REMEDY OR CAUSE OF ACTION AGAINST SELLER IN CONNECTION WITH THIS TRANSACTION OR ANY MATTER AFFECTING THE PROPERTY, OTHER THAN SELLER'S REPRESENTATIONS. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION HEREOF TO THE CONTRARY, THE WAIVER AND RELEASE SET FORTH IN THIS SECTION 6.03 BY BUYER SHALL NOT APPLY TO ANY CLAIM WITH RESPECT TO ANY FRAUDULENT OR PROVEN INTENTIONAL MISREPRESENTATION BY SELLER. FURTHER NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A) BUYER SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY ALLEGING THAT SELLER (OR SOMEONE ACTING ON SELLER’S BEHALF), NOT BUYER, IS LIABLE FOR SUCH CLAIMS AND BUYER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR GOVERNMENTAL OR THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A RESULT OF ANY ACT OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER’S BEHALF PRIOR TO THE CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 6.03 SHALL NOT APPLY TO THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND OCCURRING DURING SELLER’S OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND BUYER HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE PROVISIONS SET FORTH IN SECTION 6.03 ARE NOT INTENDED TO BE AND SHALL NOT BE CONSTRUED AS A WAIVER OF SIMILAR CLAIMS AGAINST ANY OF SELLER’S PREDECESSORS-IN-TITLE WITH RESPECT TO THE PROPERTY OR THE PROJECT (“PREDECESSORS”), OR ANY SUCH PREDECESSOR’S OFFICERS, MEMBERS, MANAGERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY OTHER PERSON ACTING ON BEHALF OF ANY SUCH PREDECESSORS, AND (II) IF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL ENTITY OR AGENCY, SHALL THREATEN OR FILE ANY CLAIM OR ACTION FOR DAMAGES, CLEAN-UP, OR OTHERWISE, AGAINST BUYER OR ANY OF ITS AFFILIATES WITH RESPECT TO THE PROPERTY OR THE PROJECT WITH RESPECT TO MATTERS OCCURING PRIOR TO CLOSING FOR WHICH SELLER HAS ANY LIABILITY OR RESPONSIBILITY, BUYER SHALL HAVE THE RIGHT TO INTERPLEAD, CROSS CLAIM OR OTHERWISE BRING SELLER INTO SUCH SUIT OR ACTION TO ADDRESS THE CLAIMS OF SUCH THIRD PARTY. THE PROVISIONS OF THIS SECTION 13 SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.

Waiver; Release. EXCEPT FOR Entrant hereby: (a) ACCEPTS THE REPRESENTATIONSCONDITIONS STATED IN THESE OFFICIAL RULES, WARRANTIES, COVENANTS AND INDEMNITIES EXPRESSLY SET FORTH AGREES TO BE BOUND BY THE DECISIONS OF THE SPONSOR; (b) ACKNOWLEDGES THAT PARTICIPATION IN THIS AGREEMENT COMPETITION MAY BE DANGEROUS AND IN COULD LEAD TO BODILY INJURY OR DEATH; (c) ACKNOWLEDGED THAT NONE OF SPONSOR, THE DOCUMENTS TO BE DELIVERED AT CLOSING (COLLECTIVELYCORPORATE SPONSORS, HEREINAFTER THE "SELLER'S REPRESENTATIONS")ADMINISTRATIVE PARTNERS, IT IS UNDERSTOOD AND AGREED THAT 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 PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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”, SUBJECT TO SELLER'S REPRESENTATIONS. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS”, SUBJECT TO SELLER'S REPRESENTATIONS. EXCEPT TO THE EXTENT OF SELLER'S REPRESENTATIONS, BUYER HAS NOT RELIED AND WILL NOT RELY ONJUDGES, AND SELLER IS NOT LIABLE FOR OR BOUND BYALL OF THEIR RESPECTIVE AFFILIATES, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY OFFERING MEMORANDUM DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SELLER'S REPRESENTATIONS. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER, SELLER’S AFFILIATED ENTITIES AND EACH OF THE RESPECTIVE MEMBERS, PARTNERSEMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND OR AGENTS OF SELLER AND SELLER’S AFFILIATED ENTITIES (COLLECTIVELY WITH SELLER AND SELLER’S AFFILIATED ENTITIES, “SELLER PARTIES”) FROM AND AGAINST WILL BE RESPONSIBLE OR LIABLE FOR ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES DAMAGES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER, SELLER’S AFFILIATED ENTITIES AND SELLER PARTIES AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, OTHER THAN PURSUANT TO SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03 HAS BEEN EXTENSIVELY NEGOTIATED BY SELLER AND BUYER, AND REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOOSING HAVING EXPERIENCE AND KNOWLEDGE IN HANDLING COMMERCIAL REAL ESTATE TRANSACTIONS OF THE NATURE AND CHARACTER AS CONTEMPLATED HEREIN, AND BUYER IS RELYING SOLELY ON THE ADVICE OF ITS LEGAL COUNSEL IN ENTERING INTO THIS AGREEMENT AND COMPLETING THE TRANSACTION CONTEMPLATED HEREIN. THE PARTIES ACKNOWLEDGE THAT THE PARTIES AND THEIR RESPECTIVE LEGAL COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT OR ANY AMENDMENTS OR EXHIBITS HERETO. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS AWARE THAT THE PROVISIONS OF THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03, LIMIT, RESTRICT AND MAY FORECLOSE BUYER’S ABILITY TO PURSUE ANY REMEDY OR CAUSE OF ACTION AGAINST SELLER IN CONNECTION WITH THIS TRANSACTION OR ANY MATTER AFFECTING THE PROPERTY, OTHER THAN SELLER'S REPRESENTATIONS. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION HEREOF TO THE CONTRARY, THE WAIVER AND RELEASE SET FORTH IN THIS SECTION 6.03 BY BUYER SHALL NOT APPLY TO ANY CLAIM WITH RESPECT TO ANY FRAUDULENT OR PROVEN INTENTIONAL MISREPRESENTATION BY SELLER. FURTHER NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A) BUYER SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY ALLEGING THAT SELLER (OR SOMEONE ACTING ON SELLER’S BEHALF), NOT BUYER, IS LIABLE FOR SUCH CLAIMS AND BUYER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR GOVERNMENTAL OR THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A RESULT OF ANY ACT OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER’S BEHALF PRIOR TO THE CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 6.03 SHALL NOT APPLY TO THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND OCCURRING DURING SELLER’S OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND BUYER HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE PROVISIONS SET FORTH IN SECTION 6.03 ARE NOT INTENDED TO BE AND SHALL NOT BE CONSTRUED AS A WAIVER OF SIMILAR CLAIMS AGAINST ANY OF SELLER’S PREDECESSORS-IN-TITLE WITH RESPECT TO THE PROPERTY OR THE PROJECT (“PREDECESSORS”), OR ANY SUCH PREDECESSOR’S OFFICERS, MEMBERS, MANAGERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY OTHER PERSON ACTING ON BEHALF OF ANY SUCH PREDECESSORS, AND (II) IF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR PROPERTY DAMAGE) AND CLAIMS OR ANY GOVERNMENTAL ENTITY RELATED COSTS OR AGENCYEXPENSES (INCLUDING, SHALL THREATEN OR FILE ANY CLAIM OR ACTION FOR DAMAGESWITHOUT LIMITATION, CLEAN-UPLEGAL FEES AND DISBURSEMENTS OF COSTS OF INVESTIGATION, LITIGATION, SETTLEMENT, JUDGMENT, INTEREST, AND PENALTIES (“LOSSES”) THAT MAY OCCUR DUE TO PARTICIPATION IN THIS COMPETITION; (d) RELEASES AND FOREVER DISCHARGES SPONSOR, THE CORPORATE SPONSORS, ADMINISTRATIVE PARTNERS, JUDGES, AND ALL OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OR OTHERWISEAGENTS FROM ANY AND ALL LOSSES ARISING FROM PARTICIPATION IN THE COMPETITION; (e) WAIVES ANY AND ALL RIGHTS OR CLAIMS FOR LOSSES AGAINST SPONSOR, AGAINST BUYER CORPORATE SPONSORS, ADMINISTRATIVE PARTNERS, JUDGES, AND ALL OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS FOR ANY AND ALL LOSSES SUFFERED RESULTING FROM INNOVATOR’S PARTICIPATION IN THE COMPETITION AND COMPETITION-RELATED EVENTS; (f) COVENANTS NOT TO XXX SPONSOR, CORPORATE SPONSORS, ADMINISTRATIVE PARTNERS, JUDGES, AND ALL OF THEIR RESPECTIVE AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OR AGENTS FOR ANY LOSSES THEREFOR ON ACCOUNT OF INJURY, DAMAGE TO PERSONAL PROPERTY, OR DEATH ARISING FROM INNOVATOR’S PARTICIPATION IN THE COMPETITION OR ANY OF ITS AFFILIATES WITH RESPECT TO THE PROPERTY OR THE PROJECT WITH RESPECT TO MATTERS OCCURING PRIOR TO CLOSING FOR WHICH SELLER HAS ANY LIABILITY OR RESPONSIBILITY, BUYER SHALL HAVE THE RIGHT TO INTERPLEAD, CROSS CLAIM OR OTHERWISE BRING SELLER INTO SUCH SUIT OR ACTION TO ADDRESS THE CLAIMS OF SUCH THIRD PARTY. THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENTOTHER LOSSES WHATSOEVER.

Waiver; Release. EXCEPT FOR TO INDUCE THE REPRESENTATIONSADMINISTRATIVE AGENT AND THE LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT, WARRANTIESEACH OF THE LOAN PARTIES AND ALON USA REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND THE LENDERS THAT, COVENANTS AND INDEMNITIES EXPRESSLY SET FORTH IN AS OF THE DATE OF ITS EXECUTION OF THIS AGREEMENT AND IN THE DOCUMENTS TO BE DELIVERED AT CLOSING (COLLECTIVELYAMENDMENT, HEREINAFTER THE "SELLER'S REPRESENTATIONS"), IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES THERE ARE NO CLAIMS OR REPRESENTATIONS OFFSETS AGAINST OR RIGHTS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, RECOUPMENT WITH RESPECT TO OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE PROPERTYLOAN DOCUMENTS AND, INCLUDINGIN ACCORDANCE THEREWITH, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 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”, SUBJECT TO SELLER'S REPRESENTATIONS. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS”, SUBJECT TO SELLER'S REPRESENTATIONS. EXCEPT TO THE EXTENT OF SELLER'S REPRESENTATIONS, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY OFFERING MEMORANDUM DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. BUYER REPRESENTS TO SELLER THAT BUYER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, OTHER THAN SELLER'S REPRESENTATIONS. UPON CLOSING, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INVESTIGATIONS, AND BUYER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER, SELLER’S AFFILIATED ENTITIES AND EACH OF THE RESPECTIVE MEMBERSLOAN PARTIES AND ALON USA HEREBY: (a) WAIVES ANY AND ALL SUCH CLAIMS, PARTNERSOFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT; AND (b) RELEASES AND DISCHARGES THE ADMINISTRATIVE AGENT AND THE LENDERS AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, EMPLOYEES AFFILIATES AND AGENTS OF SELLER AND SELLER’S AFFILIATED ENTITIES ATTORNEYS (COLLECTIVELY WITH SELLER AND SELLER’S AFFILIATED ENTITIES, “SELLER THE "RELEASED PARTIES”") FROM AND AGAINST ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, DEMANDSRIGHTS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT)OR DEMANDS WHATSOEVER, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH BUYER MIGHT SUCH LOAN PARTY EVER HAD, NOW HAS, CLAIMS TO HAVE ASSERTED OR ALLEGED MAY HAVE AGAINST SELLER, SELLER’S AFFILIATED ENTITIES AND SELLER PARTIES AT ANY TIME BY REASON OF OR RELEASED PARTY ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY, OTHER THAN PURSUANT TO SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03 HAS BEEN EXTENSIVELY NEGOTIATED BY SELLER AND BUYER, AND REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER. BUYER REPRESENTS AND WARRANTS THAT BUYER HAS BEEN REPRESENTED BY LEGAL COUNSEL OF ITS CHOOSING HAVING EXPERIENCE AND KNOWLEDGE IN HANDLING COMMERCIAL REAL ESTATE TRANSACTIONS OF THE NATURE AND CHARACTER AS CONTEMPLATED HEREIN, AND BUYER IS RELYING SOLELY ON THE ADVICE OF ITS LEGAL COUNSEL IN ENTERING INTO THIS AGREEMENT AND COMPLETING THE TRANSACTION CONTEMPLATED HEREIN. THE PARTIES ACKNOWLEDGE THAT THE PARTIES AND THEIR RESPECTIVE LEGAL COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE NORMAL RULE OF CONSTRUCTION PRIOR TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT DATE HEREOF AND FROM OR ANY AMENDMENTS OR EXHIBITS HERETO. BUYER FURTHER ACKNOWLEDGES THAT BUYER IS AWARE THAT THE PROVISIONS OF THIS AGREEMENT, INCLUDING SPECIFICALLY BUT WITHOUT LIMITATION THE PROVISIONS OF THIS SECTION 6.03, LIMIT, RESTRICT AND MAY FORECLOSE BUYER’S ABILITY TO PURSUE ANY REMEDY OR CAUSE OF ACTION AGAINST SELLER IN CONNECTION WITH THIS TRANSACTION OR ANY MATTER AFFECTING THE PROPERTY, OTHER THAN SELLER'S REPRESENTATIONS. NOTWITHSTANDING THE FOREGOING OR ANY PROVISION HEREOF TO THE CONTRARY, THE WAIVER AND RELEASE SET FORTH IN THIS SECTION 6.03 BY BUYER SHALL NOT APPLY TO ANY CLAIM WITH RESPECT TO ANY FRAUDULENT OR PROVEN INTENTIONAL MISREPRESENTATION BY SELLER. FURTHER NOTWITHSTANDING ANYTHING IN THE FOREGOING TO THE CONTRARY: (A) BUYER SHALL HAVE THE RIGHT TO DEFEND GOVERNMENT AND THIRD-PARTY CLAIMS BY ALLEGING THAT SELLER (OR SOMEONE ACTING ON SELLER’S BEHALF), NOT BUYER, IS LIABLE FOR SUCH CLAIMS AND BUYER HAS NO OBLIGATION TO INDEMNIFY SELLER FOR GOVERNMENTAL OR THIRD PARTY CLAIMS ASSERTED BEFORE OR AFTER THE CLOSING AS A RESULT OF ANY ACT OR OMISSION TAKEN OR FAILED TO BE TAKEN BY OR ON SELLER’S BEHALF PRIOR TO THE CLOSING; AND (B) THE PROVISIONS SET FORTH IN SECTION 6.03 SHALL NOT APPLY TO THIRD-PARTY TORT CLAIMS RELATING TO THE PROPERTY AND OCCURRING DURING SELLER’S OWNERSHIP OF THE PROPERTY. ADDITIONALLY, SELLER AND BUYER HEREBY ACKNOWLEDGE AND AGREE THAT (I) THE PROVISIONS SET FORTH IN SECTION 6.03 ARE NOT INTENDED TO BE AND SHALL NOT BE CONSTRUED AS A WAIVER OF SIMILAR CLAIMS AGAINST ANY OF SELLER’S PREDECESSORS-IN-TITLE WITH RESPECT TO THE PROPERTY LOAN DOCUMENTS OR THE PROJECT (“PREDECESSORS”), OR ANY SUCH PREDECESSOR’S OFFICERS, MEMBERS, MANAGERS, DIRECTORS, PARTNERS, EMPLOYEES, AGENTS OR CONTRACTORS, OR ANY OTHER PERSON ACTING ON BEHALF OF ANY SUCH PREDECESSORS, AND (II) IF ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY GOVERNMENTAL ENTITY OR AGENCY, SHALL THREATEN OR FILE ANY CLAIM OR ACTION FOR DAMAGES, CLEAN-UP, OR OTHERWISE, AGAINST BUYER OR ANY OF ITS AFFILIATES WITH RESPECT TO THE PROPERTY OR THE PROJECT WITH RESPECT TO MATTERS OCCURING PRIOR TO CLOSING FOR WHICH SELLER HAS ANY LIABILITY OR RESPONSIBILITY, BUYER SHALL HAVE THE RIGHT TO INTERPLEAD, CROSS CLAIM OR OTHERWISE BRING SELLER INTO SUCH SUIT OR ACTION TO ADDRESS THE CLAIMS OF SUCH THIRD PARTY. THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENTTRANSACTIONS CONTEMPLATED THEREBY.