future physical condition, development potential, zoning,
building or land use law or compliance therewith, the operation, income
generated by, or any other matter or thing affecting or relating to the Property
or any matter or thing pertaining to this Agreement.
Purchaser expressly
acknowledges that no such warranty or representation has been made and that
Purchaser is not relying on any warranty or representation whatsoever other than
as is expressly set forth in this Article XI.
Purchaser shall accept the
Property "as is" and in its condition on the date of Closing subject only to the
express provisions of this Agreement and hereby acknowledges and agrees that
EXCEPT AS SET FORTH IN SECTION 11.1 OF THIS AGREEMENT, SELLER HAS NOT MADE, DOES
NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED,
ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR OTHERWISE, OF, AS TO, CONCERNING OR
WITH RESPECT TO, THE PROPERTY.
11.3.1
NO ENVIRONMENTAL REPRESENTATIONS.
EXCEPT AS SET FORTH IN
SECTION 11.1.13 HEREOF, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO
WHETHER THE PROPERTY CONTAINS ASBESTOS, RADON OR ANY HAZARDOUS MATERIALS OR
HARMFUL OR TOXIC SUBSTANCES, OR PERTAINING TO THE EXTENT, LOCATION OR NATURE OF
SAME, IF ANY.
FURTHER, TO THE EXTENT THAT SELLER HAS PROVIDED TO PURCHASER
INFORMATION FROM ANY INSPECTION, ENGINEERING OR ENVIRONMENTAL REPORTS CONCERNING
ASBESTOS, RADON OR ANY HAZARDOUS MATERIALS OR HARMFUL OR TOXIC SUBSTANCES,
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OR
COMPLETENESS, METHODOLOGY OF PREPARATION OR OTHERWISE CONCERNING THE CONTENTS OF
SUCH REPORTS.
11.3.2
RELEASE OF CLAIMS.
SUBJECT TO THE EXPRESS PROVISIONS HEREOF AND
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES UNDER SECTIONS 11.1.13 HEREOF,
PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO REPRESENTATION OR
WARRANTY AS TO, AND PURCHASER, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY
WAIVES AND RELEASES SELLER FROM ANY PRESENT OR FUTURE CLAIMS, AT LAW OR IN
EQUITY, WHETHER KNOWN OR UNKNOWN, FORESEEABLE OR OTHERWISE, ARISING FROM OR
RELATING TO THE PRESENCE OR ALLEGED PRESENCE OF ASBESTOS, RADON OR ANY HAZARDOUS
MATERIALS OR HARMFUL OR TOXIC SUBSTANCES IN, ON, UNDER OR ABOUT THE PROPERTY,
INCLUDING WITHOUT LIMITATION ANY CLAIMS UNDER OR ON ACCOUNT OF (I) THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS
THE SAME MAY HAVE BEEN OR MAY BE AMENDED FROM TIME TO TIME, AND SIMILAR STATE
STATUTES, AND ANY REGULATIONS PROMULGATED THEREUNDER, (II) ANY OTHER FEDERAL,
STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, NOW OR HEREAFTER IN EFFECT,
THAT DEALS WITH OR OTHERWISE IN ANY MANNER RELATES TO, ENVIRONMENTAL MATTERS OF
ANY KIND, (III) THIS AGREEMENT, OR (IV) THE
22
COMMON LAW.
PURCHASER HEREBY SPECIFICALLY ACKNOWLEDGES THAT PURCHASER HAS
CAREFULLY REVIEWED THIS SECTION 11.3.2 AND HAS DISCUSSED ITS IMPORT WITH LEGAL
COUNSEL AND THAT THE PROVISIONS OF THIS SECTION 11.3.2 ARE A MATERIAL PART OF
THIS AGREEMENT.
This Section 11.3.2 shall survive the Closing forever.
ARTICLE XII
CASUALTY AND CONDEMNATION
Promptly upon learning thereof, Seller shall give Purchaser written notice