Laws, (e) any violations of
Applicable Laws which may exist as of the Lease Commencement Date, (f) the
presence of any Hazardous Materials at or under the Premises or at or under any
property in the vicinity of the Site, or (g) any other conditions or state of
facts that may affect the Project, including without limitation those described
in clauses (a) through (s) of Section 36.12. NONE OF LANDLORD, LENDER, OR ANY
AFFILIATE OR REPRESENTATIVE THEREOF HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR SHALL BE DEEMED TO HAVE ANY
LIABILITY WHATSOEVER AS TO THE PREMISES, INCLUDING BUT NOT LIMITED
27
TO, ANY WARRANTY OR REPRESENTATION, EXPRESS OF IMPLIED, AS TO THE VALUE,
HABITABILITY, COMPLIANCE WITH ANY PLANS AND SPECIFICATIONS, CONDITION, DESIGN,
OPERATION, LOCATION, USE, DURABILITY, MERCHANTABILITY, CONDITION OF TITLE, OR
FITNESS FOR USE OF THE PREMISES (OR ANY PART THEREOF) FOR ANY PARTICULAR
PURPOSE, OR AS TO THE STATE OF LANDLORD'S TITLE TO THE PREMISES OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PREMISES (OR ANY PART THEREOF) AND NONE OF LANDLORD, LENDER, ANY AFFILIATE
THEREOF OR ANY DESIGNEE THEREOF SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR
PATENT DEFECT THEREIN OR FOR THE FAILURE OF THE .PROJECT TO BE CONSTRUCTED IN
ACCORDANCE WITH ANY PLANS AND SPECIFICATIONS THEREFOR, FOR THE COMPLIANCE OF THE
PLANS AND SPECIFICATIONS FOR THE PROJECT WITH APPLICABLE LAWS OR FOR THE FAILURE
OF THE PROJECT, OR ANY PART THEREOF, TO OTHERWISE COMPLY WITH ANY APPLICABLE
LAWS, OR FOR ANY ACTUAL, EXCEPTIONAL OR CONSEQUENTIAL DAMAGES ARISING THEREFROM
(INCLUDING STRICT LIABILITY IN TORT), IT BEING AGREED THAT ALL RISKS INCIDENT TO
ALL OF THESE MATTERS ARE TO BE BORNE SOLELY BY TENANT. It is agreed that,
pursuant to the terms of the Project Management Agreement, Tenant or an
Affiliate of Tenant has approved the design and will oversee and be responsible
for the construction of the Project, will inspect the Project to its complete
satisfaction, will rely solely on the results of its own inspections and accepts
all risks incident to the matters discussed in the preceding sentence. The
provisions of this Section 6.2 have been negotiated, and the foregoing
provisions are intended to be a complete exclusion and negation of any
representations or warranties by Landlord, any Affiliate thereof or the Lender
or any Affiliate thereof, express or implied, with respect to the Premises, the
condition thereof and title thereto, that may arise pursuant to any law now or
hereafter in effect, or otherwise and specifically negating any warranties under
the Uniform Commercial Code.
6.3
Tenant's Right to Enforce Warranties.
(a)
As of the Lease Commencement Date, provided that no Event of Default
shall have occurred and be continuing, and subject to Section 6.3(b) below,
Landlord hereby assigns and sets over (without recourse) to, and Tenant hereby
accepts the assignment and assumes the obligations thereunder from and after the
Lease Commencement Date of all of Landlord's right, title