THOSE RESULTING FROM PATENT OR LATENT CONSTRUCTION DEFECTS.
PURCHASER REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT
PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS OF THE LAND AND
IMPROVEMENTS, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION
OF THE PROPERTY AND
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THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY
HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE LAND AND IMPROVEMENTS,
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
SUCH REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET
FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS DELIVERED AT CLOSING.
UPON CLOSING,
PURCHASER 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 PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON
CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER,
SELLER'S AFFILIATED ENTITIES (INCLUDING WITHOUT LIMITATION THE PROPERTY MANAGER)
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS,
EMPLOYEES AND AGENTS (COLLECTIVELY, "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 ATTORNEYS' FEES AND
EXPENSES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER
MIGHT HAVE ASSERTED OR ALLEGED AGAINST ANY SELLER PARTY OR 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 (INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS,
EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY.
9.3
Environmental Release.
(a)
PURCHASER AND PURCHASER'S AFFILIATES FURTHER
COVENANT AND AGREE NOT TO SUE SELLER AND THE SELLER PARTIES AND RELEASE SELLER
AND THE SELLER PARTIES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF
ACTION, INCLUDING ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER
OR PURCHASER'S AFFILIATES MAY HAVE AGAINST SELLER OR THE SELLER PARTIES UNDER
ANY HAZARDOUS SUBSTANCES LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED,
RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER,
ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING CERCLA (DEFINED BELOW)
AND RCRA (DEFINED BELOW), OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR
HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR HAZARDOUS SUBSTANCES
IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, UNLESS SPECIFICALLY
SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENTS DELIVERED AT CLOSING.
THE TERMS
AND CONDITIONS OF THIS SECTION WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS
AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE DEEDS.
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(b)
As used in this Agreement, "Hazardous
Substances" shall mean and include, but shall not be limited to any petroleum
product and all hazardous or toxic substances,