AS-IS; RELEASE. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION THE CONDITION, VALUATION, MARKETABILITY OR UTILITY OF THE PROPERTY AND ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, OR SIMILAR LAWS). SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR RELATE TO, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.
Appears in 1 contract
AS-IS; RELEASE. AS A MATERIAL AN ESSENTIAL INDUCEMENT TO SELLER TO ENTER INTO THIS AGREEMENT, AND AS PART OF THE EXECUTION AND DELIVERY DETERMINATION OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDERPURCHASE PRICE, BUYER DOES HEREBY ACKNOWLEDGEACKNOWLEDGES, REPRESENTUNDERSTANDS AND AGREES AS OF THE EFFECTIVE DATE (IN THE CASE OF SECTION 11.1) AND AS OF THE CLOSING (IN THE CASE OF SECTIONS 11.1 AND 11.2) TO THE PROVISIONS SET FORTH BELOW. 11.1 AS-IS, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, WHERE-IS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH PROVIDED IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) SECTION 7.1 ABOVE, BUYER ACKNOWLEDGES AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), AGREES THAT (A) THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, WITH BUYER IS PURCHASING ASSUMING THE PROPERTY IN AN “AS-IS” SUCH CONDITION AS AND AGREEING THAT SELLER SHALL NOT HAVE ANY RESPONSIBILITY FOR THE CONDITION OF THE DATE PROPERTY (OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE REPAIR OF ANY PORTION OF THE CLOSE PROPERTY AND/OR FOR THE CONSTRUCTION OF ESCROW WITH RESPECT TO ANY FACTSIMPROVEMENTS), CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CORRECT GUARANTIES OF ANY SUCH FACTSKIND OR CHARACTER WHATSOEVER, CIRCUMSTANCESWHETHER EXPRESS OR IMPLIED, CONDITIONS ORAL OR DEFECTS WRITTEN, PAST, PRESENT OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROWFUTURE OF, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY TO, CONCERNING OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL THE PROPERTY OR ANY PART OF THE PROPERTY OTHER MATTER WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC REPRESENTATIONS OR RADIOACTIVE WASTE, SUBSTANCE OR WARRANTIES REGARDING ANY HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY OR THE CONSTRUCTION OF ANY IMPROVEMENTS), (C) BUYER HAS CONFIRMED INDEPENDENTLY ALL INFORMATION THAT IT CONSIDERS MATERIAL TO ITS PURCHASE OF THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE REAL PROPERTY AND TITLE TO THE PROPERTY), (D) BUYER IS A SOPHISTICATED BUYER AND ACKNOWLEDGES THAT TO THE FULLEST EXTENT AT LAW, SELLER SHALL NOT BE RESPONSIBLE FOR ANY MATTERS AFFECTING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY REMEDIATION OF ANY HAZARDOUS MATERIALS OR CONSTRUCTION OF ANY IMPROVEMENTS OR OTHERWISE WITH RESPECT TO THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS (E) ANY INFORMATION PROVIDED BELOW, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION IS SOLELY FOR BUYER’S CONVENIENCE AND SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AS TO THE CONDITION, VALUATION, MARKETABILITY ACCURACY OR UTILITY COMPLETENESS OF THE PROPERTY AND SAME. AS USED HEREIN, “HAZARDOUS MATERIALS” MEANS ANY RIGHTS HAZARDOUS, TOXIC OR DANGEROUS WASTE, SUBSTANCE OR MATERIAL, POLLUTANT OR CONTAMINANT, AS DEFINED FOR PURPOSES OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACTACT OF 1980 (42 U.S.C. SECTION 9601 ET SEQ.), AS AMENDED FROM TIME TO TIMEAMENDED, OR SIMILAR LAWSTHE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. SECTION 6901 ET SEQ.). SUBJECT TO THE EXCEPTIONS AND EXCEPT , AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISINGAMENDED, OR WHICH COULD, MIGHTANY OTHER LAWS, OR MAY BE CLAIMED TO EXISTANY SUBSTANCE WHICH IS TOXIC, OF WHATEVER KIND OR NATUREEXPLOSIVE, WHETHER KNOWN OR UNKNOWNCORROSIVE, SUSPECTED OR UNSUSPECTEDFLAMMABLE, LIQUIDATED OR UNLIQUIDATEDINFECTIOUS, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTHRADIOACTIVE, WHICH IN ANY WAY ARISE OUT OFCARCINOGENIC, MUTAGENIC, OR ARE CONNECTED WITHOTHERWISE HAZARDOUS, OR RELATE TOANY SUBSTANCE WHICH CONTAINS GASOLINE, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOWDIESEL FUEL OR OTHER PETROLEUM HYDROCARBONS, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, POLYCHLORINATED BIPHENYLS (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENTPCBS), OR CLAIMS FOR INDEMNITY RADON GAS, UREA FORMALDEHYDE, ASBESTOS OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACTLEAD.
Appears in 1 contract
Samples: Purchase and Sale Agreement
AS-IS; RELEASE. AS A MATERIAL INDUCEMENT TO THE EXECUTION (a) EXCEPT FOR THOSE REPRESENTATIONS AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, EXCEPT AS OTHERWISE EXPRESSLY WARRANTIES SET FORTH IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) THIS CONTRACT AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 ANDTHE CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 6.02, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND PURCHASER ACKNOWLEDGES THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IT IS NOT MAKING AND HAS NOT MADE RELYING ON ANY WARRANTY REPRESENTATIONS OR REPRESENTATION WITH RESPECT TO ALL WARRANTIES WHATSOEVER BY SELLER OR ANY PART OF AGENT OR EMPLOYEE THEREOF REGARDING THE PROPERTY (INCLUDING, BUT NOT LIMITED TOWITHOUT LIMITATION, ITS PHYSICAL CONDITION, ITS SUITABILITY FOR ANY MATTERS CONTAINED PARTICULAR PURPOSE, ITS COMPLIANCE WITH LAWS INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LAWS, OR THE ABSENCE OF HAZARDOUS SUBSTANCES THEREUPON), AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, EXCEPT FOR ANY THAT ARE EXPRESSLY MADE IN THIS CONTRACT. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS CONTRACT AND IN THE CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 6.02, PURCHASER SHALL ACCEPT THE PROPERTY IN ITS “AS IS”, “WHERE IS”, “WITH ALL FAULTS” CONDITION. SELLER HEREBY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXPRESS OR IMPLIED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS CONTRACT AND IN THE CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 6.02, SELLER MAKES NO REPRESENTATION OR WARRANTY AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF ANY MATERIALS, DATA OR OTHER INFORMATION DELIVERED OR MADE AVAILABLE OR DELIVERED BY SELLER TO BUYER PURCHASER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT THE TRANSACTION CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE DUE DILIGENCE MATERIALS). PURCHASER ACKNOWLEDGES THAT IT IS A SOPHISTICATED BUYER WHO HAS HERETOFORE HAD AND/OR SHALL DURING THE REVIEW PERIOD HAVE SUFFICIENT ACCESS TO, AND SUFFICIENT TIME TO BUYER REVIEW, ALL INFORMATION, DOCUMENTS, AGREEMENTS, STUDIES AND TESTS RELATING TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY THAT PURCHASER DEEMED OR FOR ANY OTHER PURPOSE; DEEMS NECESSARY TO REVIEW IN ITS SOLE DISCRETION, AND (E) BY REASON HAS OR HEREAFTER SHALL HAVE CONDUCTED A COMPLETE AND THOROUGH INSPECTION, ANALYSIS AND EVALUATION OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION BUT NOT LIMITED TO ENVIRONMENTAL TESTING. PURCHASER HEREBY RELEASES SELLER, ASCENT LLC, THEIR RESPECTIVE CONSTITUENT OWNERS, AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS FROM ANY AND ALL LIABILITY, RESPONSIBILITY, CLAIMS, DAMAGES, LOSSES AND EXPENSES, WHETHER KNOWN OR UNKNOWN, AND WHETHER FORESEEN OR UNFORESEEN, ARISING OUT OF OR RELATED TO THE CONDITION OF THE PROPERTY (INCLUDING THE PROPERTY’S COMPLIANCE WITH LAWS AND REGULATIONS) OR ITS SUITABILITY FOR ANY PURPOSE, INCLUDING THOSE ARISING OUR OF OR RELATING TO THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIALHAZARDOUS MATERIALS, HAZARDOUSANY ENVIRONMENTAL DAMAGES OR ENVIRONMENTAL REQUIREMENTS (INCLUDING, TOXIC WITHOUT LIMITATION, THE PHYSICAL, STRUCTURAL, GEOLOGICAL, MECHANICAL AND ENVIRONMENTAL (SURFACE AND SUBSURFACE) CONDITION OF ANY OF THE REAL PROPERTY AND ANY LAW OR RADIOACTIVE WASTEREGULATION RELATING TO HAZARDOUS MATERIALS), SUBSTANCE REGARDLESS OF WHETHER SUCH CONDITION AROSE OR MATERIALS INCAME INTO EXISTENCE BEFORE, ONON OR AFTER THE CLOSING DATE, UNDER OR ABOUT EXCEPT FOR ANY LIABILITY OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING THE PROPERTYFOREGOING, AND THIS RELEASE SPECIFICALLY APPLIES (SUBJECT TO THE EXCEPTIONS SELLER’S EXPRESS REPRESENTATIONS AND EXCEPT AS PROVIDED BELOWWARRANTIES SET FORTH IN THIS AGREEMENT) TO ALL LOSSES AND CLAIMS, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEESWHETHER KNOWN OR UNKNOWN, AND THEIR RESPECTIVE SUCCESSORSWHETHER FORESEEN OR UNFORESEEN, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION THE CONDITION, VALUATION, MARKETABILITY OR UTILITY OF THE PROPERTY AND ANY RIGHTS OF BUYER ARISING UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, (42 U.S.C. SECTIONS 9601 ET SEQ.), THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976, (42 U.S.C. SECTIONS 6901 ET SEQ.), THE CLEAN WATER ACT, (33 U.S.C. SECTIONS 466 ET SEQ.), THE SAFE DRINKING WATER ACT, (14 U.S.C. SECTION 1401-1450), THE HAZARDOUS MATERIALS TRANSPORTATION ACT, (49 U.S.C. SECTIONS 1801 ET SEQ.), THE TOXIC SUBSTANCE CONTROL ACT, (15 U.S.C. SECTIONS 2601-2629), AND ANY OTHER FEDERAL, STATE OR LOCAL LAW OF SIMILAR EFFECT, AS AMENDED FROM TIME TO TIME, OR SIMILAR LAWSWELL AS ANY AND ALL COMMON LAW CLAIMS). SUBJECT PURCHASER HAS UNDERTAKEN OR HEREAFTER SHALL UNDERTAKE SUCH INVESTIGATION AS PURCHASER DEEMED OR DEEMS NECESSARY TO MAKE PURCHASER FULLY AWARE OF THE EXCEPTIONS CONDITION OF THE PROPERTY AS WELL AS ALL FACTS, CIRCUMSTANCES AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES INFORMATION WHICH MAY AFFECT THE USE AND AGREES THAT THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS OPERATION OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISINGAND PURCHASER ACKNOWLEDGES THAT PURCHASER HAS RELIED AND SHALL RELY, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR RELATE TO, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER WARRANTIES CONTAINED IN THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, CONTRACT AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT CLOSING DOCUMENTS DELIVERED PURSUANT TO SECTION 6.02, SOLELY ON PURCHASER’S OWN DUE DILIGENCE INVESTIGATION IN DETERMINING TO PURCHASE THE PROPERTY. THE PROVISIONS OF SELLER’S INTENTIONAL MISREPRESENTATION THIS SECTION 4.07 SHALL SURVIVE THE CLOSING OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.EARLIER TERMINATION OF THIS AGREEMENT WITHOUT LIMITATION. THE PROVISIONS OF THIS SECTION 4.07(B) SHALL SURVIVE THE CLOSING WITHOUT LIMITATION. PH MS Seller’s Initials Purchaser’s Initials
Appears in 1 contract
Samples: Purchase Agreement (Carter Validus Mission Critical REIT, Inc.)
AS-IS; RELEASE. (a) Purchaser acknowledges that Purchaser will have the opportunity to independently and personally inspect the Property and that Purchaser has entered into this Agreement based upon its ability to make such examination and inspection. The Property is to be accepted by Purchaser at Closing, by reason of its purchase of the Interests, in its then present condition "AS A MATERIAL INDUCEMENT IS, WITH ALL FAULTS, (WHETHER LATENT, PATENT OR DETECTABLE OR NOT) AND WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED", and without any reduction in the Purchase Price for any change in the physical or financial condition occurring from and after the Effective Date EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN THIS CONTRACT. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE EXECUTION CONTRARY, IT IS UNDERSTOOD AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, AGREED THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN FOR THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLERS CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 ANDCONTRACT, SELLERS AND SELLERS' AGENTS OR EMPLOYEES HAVE NOT MADE AND ARE NOT NOW MAKING, AND THEY SPECIFICALLY DISCLAIM, ANY WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR INTERESTS OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (, INCLUDING, BUT NOT LIMITED TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (1) MATTERS OF TITLE (OTHER THAN SELLERS' WARRANTY OF TITLE, IF ANY, SET FORTH IN THE DEED TO BE DELIVERED AT CLOSING); (2) ENVIRONMENTAL MATTERS OF ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING KIND RELATING TO THE PROPERTY, THE LAND OR THE IMPROVEMENTS OR ANY PORTION THEREOF (INCLUDING THE CONDITION OF THE SOIL OR GROUNDWATER BENEATH THE PROPERTY); (3) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION LIMITATION, SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES; (4) WHETHER, AND TO THE EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD; (5) DRAINAGE; (6) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY UNDER SHORING; (7) ZONING TO WHICH THE PROPERTY OR ANY PORTION THEREOF MAY BE SUBJECT; (8) THE AVAILABILITY OF ANY UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUT LIMITATION, WATER, SEWAGE, GAS AND ELECTRIC; (9) USAGES OF ADJOINING PROPERTY; (10) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF, (11) THE VALUE, COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART THEREOF; (12) THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC HAZARDOUS MATERIALS (HEREINAFTER DEFINED) IN OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT IN THE VICINITY OF THE PROPERTY, AND SUBJECT TO ; (13) THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/CONDITION OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION THE CONDITION, VALUATION, MARKETABILITY OR UTILITY USE OF THE PROPERTY AND OR COMPLIANCE OF THE PROPERTY WITH ANY RIGHTS OF BUYER UNDER THE OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSELOCAL ORDINANCES, COMPENSATION AND LIABILITY ACTRULES, AS AMENDED FROM TIME TO TIMEREGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS). SUBJECT TO ; (14) THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS; (15) ANY OTHER MATTER AFFECTING THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS STABILITY OR INTEGRITY OF BUYER AGAINST SELLER PERTAINING TO THE REAL PROPERTY; (16) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE PROPERTY; (17) THE EXISTENCE OF VESTED LAND USE, WHETHER HERETOFORE ZONING OR NOW EXISTING OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR RELATE TO, BUILDING ENTITLEMENTS AFFECTING THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, ; (I18) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.THE
Appears in 1 contract
Samples: Contract of Sale and Purchase (Ramco Gershenson Properties Trust)
AS-IS; RELEASE. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, (A) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) EXCEPT AS EXPRESSLY SET FORTH IN PARAGRAPH 13.1 AND FOR THE DURATION THEREOF, SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ASSUME THE FULL RISK OF ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOWEXPRESSLY SET FORTH IN PARAGRAPH 13.1 AND FOR THE DURATION THEREOF, BUYER HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES AND RELEASES SELLER AND ALL OF ITS THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION THE CONDITION, VALUATION, MARKETABILITY OR UTILITY OF THE PROPERTY AND ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, OR SIMILAR LAWS). SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING WAIVER AND RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR RELATE TO, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE RELEASE, DISCHARGE AND ACQUIT SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.TR JH Buyer’s Initials
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Kilroy Realty Corp)
AS-IS; RELEASE. AS A MATERIAL AN ESSENTIAL INDUCEMENT TO SELLER TO ENTER INTO THIS AGREEMENT, AND AS PART OF THE EXECUTION AND DELIVERY DETERMINATION OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDERPURCHASE PRICE, BUYER DOES HEREBY ACKNOWLEDGEACKNOWLEDGES, REPRESENTUNDERSTANDS AND AGREES AS OF THE RESTATED EFFECTIVE DATE (IN THE CASE OF SECTION 11.1) AND AS OF THE CLOSING (IN THE CASE OF SECTIONS 11.1 AND 11.2) TO THE PROVISIONS SET FORTH BELOW. 11.1 AS-IS, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, WHERE-IS. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH PROVIDED IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) SECTION 7.1 ABOVE, BUYER ACKNOWLEDGES AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), AGREES THAT (A) THE SALE OF THE PROPERTY HEREUNDER IS AND WILL BE MADE ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, WITH BUYER IS PURCHASING ASSUMING THE PROPERTY IN AN “AS-IS” SUCH CONDITION AS AND AGREEING THAT SELLER SHALL NOT HAVE ANY RESPONSIBILITY FOR THE CONDITION OF THE DATE PROPERTY (OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE REPAIR OF ANY PORTION OF THE CLOSE PROPERTY AND/OR FOR THE CONSTRUCTION OF ESCROW WITH RESPECT TO ANY FACTSIMPROVEMENTS), CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CORRECT GUARANTIES OF ANY SUCH FACTSKIND OR CHARACTER WHATSOEVER, CIRCUMSTANCESWHETHER EXPRESS OR IMPLIED, CONDITIONS ORAL OR DEFECTS WRITTEN, PAST, PRESENT OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROWFUTURE OF, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY TO, CONCERNING OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL THE PROPERTY OR ANY PART OF THE PROPERTY OTHER MATTER WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC REPRESENTATIONS OR RADIOACTIVE WASTE, SUBSTANCE OR WARRANTIES REGARDING ANY HAZARDOUS MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY OR THE CONSTRUCTION OF ANY IMPROVEMENTS), (C) BUYER HAS CONFIRMED INDEPENDENTLY ALL INFORMATION THAT IT CONSIDERS MATERIAL TO ITS PURCHASE OF THE PROPERTY OR THE TRANSACTION CONTEMPLATED HEREBY (INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE REAL PROPERTY AND TITLE TO THE PROPERTY), (D) BUYER IS A SOPHISTICATED BUYER AND ACKNOWLEDGES THAT TO THE FULLEST EXTENT AT LAW, SELLER SHALL NOT BE RESPONSIBLE FOR ANY MATTERS AFFECTING THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY REMEDIATION OF ANY HAZARDOUS MATERIALS OR CONSTRUCTION OF ANY IMPROVEMENTS OR OTHERWISE WITH RESPECT TO THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS (E) ANY INFORMATION PROVIDED BELOW, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION IS SOLELY FOR BUYER’S CONVENIENCE AND SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AS TO THE CONDITION, VALUATION, MARKETABILITY ACCURACY OR UTILITY COMPLETENESS OF THE PROPERTY AND SAME. AS USED HEREIN, “HAZARDOUS MATERIALS” MEANS ANY RIGHTS HAZARDOUS, TOXIC OR DANGEROUS WASTE, SUBSTANCE OR MATERIAL, POLLUTANT OR CONTAMINANT, AS DEFINED FOR PURPOSES OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACTACT OF 1980 (42 U.S.C. SECTION 9601 ET SEQ.), AS AMENDED FROM TIME TO TIMEAMENDED, OR SIMILAR LAWSTHE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. SECTION 6901 ET SEQ.). SUBJECT TO THE EXCEPTIONS AND EXCEPT , AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISINGAMENDED, OR WHICH COULD, MIGHTANY OTHER LAWS, OR MAY BE CLAIMED TO EXISTANY SUBSTANCE WHICH IS TOXIC, OF WHATEVER KIND OR NATUREEXPLOSIVE, WHETHER KNOWN OR UNKNOWNCORROSIVE, SUSPECTED OR UNSUSPECTEDFLAMMABLE, LIQUIDATED OR UNLIQUIDATEDINFECTIOUS, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTHRADIOACTIVE, WHICH IN ANY WAY ARISE OUT OFCARCINOGENIC, MUTAGENIC, OR ARE CONNECTED WITHOTHERWISE HAZARDOUS, OR RELATE TOANY SUBSTANCE WHICH CONTAINS GASOLINE, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOWDIESEL FUEL OR OTHER PETROLEUM HYDROCARBONS, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, POLYCHLORINATED BIPHENYLS (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENTPCBS), OR CLAIMS FOR INDEMNITY RADON GAS, UREA FORMALDEHYDE, ASBESTOS OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACTLEAD.
Appears in 1 contract
Samples: Purchase and Sale Agreement
AS-IS; RELEASE. EXCEPT AS A MATERIAL INDUCEMENT EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR THE DOCUMENTS DELIVERED AT CLOSING, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, AND BUYER HEREBY ACKNOWLEDGES THAT NO REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND/OR THE DOCUMENTS DELIVERED AT CLOSING, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE EXECUTION STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (D) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (E) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (F) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND DELIVERY (G) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER DOCUMENTS TO BE DELIVERED AT THE CLOSING, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND STATE OF REPAIR, "AS IS" AND "WHERE IS", WITH ALL FAULTS. BUYER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED BUYER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS DUTIES OWN EXPERTISE AND OBLIGATIONS HEREUNDERTHAT OF BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY. EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, BUYER DOES HEREBY ACKNOWLEDGEACKNOWLEDGES AND AGREES THAT IT WILL HAVE THE OPPORTUNITY TO CONDUCT SUCH INSPECTIONS, REPRESENTINVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS, WARRANT INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND AGREEENVIRONMENTAL CONDITIONS THEREOF, DURING THE CONTINGENCY PERIOD AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER OR OF ANY MEMBER, MANAGER, OFFICER, DIRECTOR, AGENT OR ATTORNEY OF SELLER. BUYER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY BUYER WILL BE OBTAINED FROM A VARIETY OF SOURCES AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, ADEQUACY, TRUTH OR ACCURACY OF ANY OF THE DUE DILIGENCE ITEMS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO BUYER. UPON CLOSING, BUYER ACKNOWLEDGES THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND WITH THE SELLERENVIRONMENTAL CONDITIONS, THATMAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING (THE “CLOSING DOCUMENTS”) AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 ANDAND DOCUMENTS DELIVERED AT CLOSING, WITH RESPECT SELLER WILL SELL AND CONVEY TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERSBUYER, AND BUYER WILL ACCEPT THE PROPERTY, "AS IS, WHERE IS," WITH ALL FAULTS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY, BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS AND WILL BE FULLY SATISFIED NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. BUYER ACKNOWLEDGES THAT THE PURCHASE PRICE IS FAIR REFLECTS THE "AS IS, WHERE IS" NATURE OF THIS SALE AND ADEQUATE CONSIDERATION FOR ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY; (D) SELLER IS NOT MAKING . BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED WAIVERS SET FORTH IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND (E) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, AND SUBJECT TO UNDERSTANDS THE EXCEPTIONS SIGNIFICANCE AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY EXPRESSLY RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY (INCLUDING WITHOUT LIMITATION THE CONDITION, VALUATION, MARKETABILITY OR UTILITY OF THE PROPERTY AND ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, OR SIMILAR LAWS)EFFECT THEREOF. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING RELEASE INCLUDES DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. WITHOUT LIMITING ANY OTHER PROVISIONS HEREOF, BUYER, FOR ITSELF AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, FOREVER RELEASES AND DISCHARGES, AND COVENANTS NOT TO XXX, SELLER WITH RESPECT TO ANY AND ALL RIGHTS RIGHTS, CLAIMS, OBJECTIONS, COMPLAINTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTYDEMANDS, AT LAW OR IN EQUITY, WHETHER HERETOFORE DIRECT OR NOW EXISTING OR HEREAFTER ARISINGINDIRECT, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED FORESEEN OR UNSUSPECTEDUNFORESEEN, LIQUIDATED THAT MAY ARISE ON ACCOUNT OF OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OFBE CONNECTED WITH THE PROPERTY OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PHYSICAL, ENVIRONMENTAL AND STRUCTURAL CONDITION OF THE PROPERTY OR ARE CONNECTED WITHANY LAW OR REGULATION APPLICABLE THERETO, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OR RELATE TOMATTER RELATING TO THE USE, PRESENCE, DISCHARGE OR RELEASE OF HAZARDOUS MATERIALS ON, UNDER, IN, ABOVE OR ABOUT THE PROPERTY. SUBJECT TO THE EXCEPTIONS TERMS AND EXCEPT AS PROVIDED BELOW, CONDITIONS OF THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO PARAGRAPH WILL EXPRESSLY SURVIVE THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “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, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTORCLOSING.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIES, DEFAULT UNDER THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Plymouth Industrial REIT Inc.)
AS-IS; RELEASE. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE DOCUMENTS TO BE DELIVERED BY THE PARTIES AT CLOSING THIS AGREEMENT, INCLUDING WITHOUT LIMITATION SECTION 10 (THE “CLOSING DOCUMENTS”) AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONSSELLER’S EXPRESS WARRANTIES”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERS, AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTY WARRANTIES OR REPRESENTATION REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER’S LIMITED WARRANTY OF TITLE TO BE SET FORTH IN DOCUMENTS MADE AVAILABLE THE DEED), ZONING, TAX CONSEQUENCES, LATENT PHYSICAL OR DELIVERED ENVIRONMENTAL CONDITION, UTILITIES, VALUATION, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. 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”, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN CONNECTION WITH THIS AGREEMENT) AS AN INDUCEMENT . OTHER THAN THE SELLER’S EXPRESS WARRANTIES, BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO BUYER TO ENTER INTO THIS ESCROW AND THEREAFTER TO PURCHASE THE PROPERTY OR FOR ANY OTHER PURPOSE; AND RELATING THERETO (EINCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY REASON OF ALL SELLER, THE MANAGER OF THE FOREGOINGPROPERTY, SUBJECT OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOWREPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER SHALL NOT SEEK RECOVERY FROM REPRESENTS TO SELLER FOR ANY LOSS THAT BUYER HAS CONDUCTED, OR DAMAGE OCCASIONED BY ANY FACTWILL CONDUCT PRIOR TO CLOSING, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING WITHOUT LIMITATION BUT NOT LIMITED TO, THE PRESENCE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS BUYER DEEMS NECESSARY 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 ASBESTOS CONTAINING MATERIAL, HAZARDOUS, HAZARDOUS OR TOXIC SUBSTANCES ON OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT DISCHARGED FROM THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS WILL RELY SOLELY UPON SAME AND EXCEPT 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 PROVIDED BELOWARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, BUYER HEREBY EXPRESSLY RELEASES 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 (AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, SELLER’S OFFICERS, DIRECTORS, SHAREHOLDERS, PARTNERS, MEMBERS, AGENTS EMPLOYEES AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”AGENTS) FROM AND AGAINST ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING WITHOUT LIMITATION THE CONDITIONCAUSES OF ACTION IN TORT), VALUATIONLOSSES, MARKETABILITY OR UTILITY DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) OF THE PROPERTY ANY AND ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, OR SIMILAR LAWS). SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER AGAINST SELLER PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER EVERY KIND OR NATURECHARACTER, WHETHER KNOWN OR UNKNOWN, SUSPECTED WHICH BUYER MIGHT HAVE ASSERTED OR UNSUSPECTEDALLEGED AGAINST SELLER (AND SELLER’S OFFICERS, LIQUIDATED DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR UNLIQUIDATEDARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTHVIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WHICH IN WITHOUT LIMITATION, ANY WAY ARISE OUT OFENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR ARE CONNECTED WITH, OR RELATE TO, MATTERS REGARDING THE PROPERTY. SUBJECT TO AS PART OF THE EXCEPTIONS AND EXCEPT PROVISIONS OF THIS SECTION 24, BUT NOT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOWA LIMITATION THEREON, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND BUYER REALIZES HEREBY WAIVES ANY AND ACKNOWLEDGES THAT FACTUAL MATTERS ALL RIGHTS AND BENEFITS WHICH IT NOW UNKNOWN TO IT HAS, OR IN THE FUTURE MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTIONCONFERRED UPON IT, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE SELLER AND THE RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 BY VIRTUE OF THE CALIFORNIA CIVIL CODEPROVISIONS OF FEDERAL, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW STATE OR SUSPECT TO EXIST IN HIS LOCAL LAW, RULES OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” /s/ HS BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONS, (I) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER REGULATIONS. TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH THAT ANYTHING CONTAINED IN THIS AGREEMENT OR SECTION 24 IN ANY OF WAY CONTRADICTS OR LIMITS THE CLOSING DOCUMENTS, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND EXPRESS WARRANTIES, DEFAULT UNDER SELLER’S EXPRESS WARRANTIES SHALL BE DEEMED CONTROLLING AS IF THIS SECTION 24 WERE NOT PART OF THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND (II) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACT.
Appears in 1 contract
AS-IS; RELEASE. AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER AND THE PERFORMANCE BY SELLER OF ITS DUTIES AND OBLIGATIONS HEREUNDER, BUYER DOES HEREBY ACKNOWLEDGE, REPRESENT, WARRANT AND AGREE, TO AND WITH THE SELLER, THAT, EXCEPT AS OTHERWISE EXPRESSLY FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 13.1 OF THIS AGREEMENT OR ANY CLOSING DOCUMENTS EXECUTED BY SELLER AND DELIVERED TO BUYER AT THE DOCUMENTS TO BE DELIVERED BY CLOSING, INCLUDING, WITHOUT LIMITATION, THE PARTIES AT HOLDBACK AGREEMENT, THAT SURVIVE CLOSING (COLLECTIVELY, THE “CLOSING DOCUMENTSSELLER REPRESENTATIONS”) AND IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION IN PARAGRAPH 13.1 AND, WITH RESPECT TO THE REPRESENTATIONS AND WARRANTIES CONTAINED THEREIN, FOR THE DURATION THEREOF) (ALL SUCH MATTERS COLLECTIVELY, THE “EXCEPTIONS”), (A) BUYER IS PURCHASING THE PROPERTY IN AN “AS-IS” CONDITION AND “WHERE IS” CONDITION, WITH ALL FAULTS, AS OF THE DATE OF THE CLOSE OF ESCROW WITH RESPECT TO ANY FACTS, CIRCUMSTANCES, CONDITIONS AND DEFECTS; (B) SELLER HAS NO OBLIGATION TO BUYER TO REPAIR OR CORRECT ANY SUCH FACTS, CIRCUMSTANCES, CONDITIONS OR DEFECTS OR COMPENSATE BUYER FOR SAME; (C) BY THE CLOSE OF ESCROW, BUYER SHALL HAVE UNDERTAKEN ALL SUCH PHYSICAL INSPECTIONS AND EXAMINATIONS OF THE PROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE UNDER THE CIRCUMSTANCES, AND THAT BASED UPON SAME, BUYER IS AND WILL BE RELYING STRICTLY AND SOLELY UPON SUCH INSPECTIONS AND EXAMINATIONS AND THE ADVICE AND COUNSEL OF ITS AGENTS AND OFFICERSOFFICERS (AND NOT UPON ANY REPRESENTATIONS OR WARRANTIES OF SELLER), AND BUYER IS AND WILL BE FULLY SATISFIED THAT THE PURCHASE PRICE IS FAIR AND ADEQUATE CONSIDERATION FOR THE PROPERTY; (D) EXCEPT FOR THE SELLER REPRESENTATIONS (AND FOR THE DURATION THEREOF), SELLER IS NOT MAKING AND HAS NOT MADE ANY WARRANTY OR REPRESENTATION WITH RESPECT TO ALL OR ANY PART OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, ANY MATTERS CONTAINED IN DOCUMENTS MADE AVAILABLE OR DELIVERED TO BUYER IN CONNECTION WITH THIS AGREEMENT); (E) AS AN INDUCEMENT IN FURTHERANCE OF, AND NOT IN LIMITATION OF, THE FOREGOING, SELLER HAS AND HEREBY SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY, ASSURANCE, PROMISE, COVENANT, AGREEMENT OR GUARANTY WHATSOEVER TO BUYER AND NO WARRANTIES, REPRESENTATIONS, ASSURANCES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTEES OF ANY KIND OR CHARACTER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO ENTER INTO THIS ESCROW THE PROPERTY (OR ANY PORTION THEREOF), THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN, LEASING OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF; (F) THE FOREGOING DISCLAIMERS OF REPRESENTATIONS, WARRANTIES, ASSURANCES, PROMISES, COVENANTS, AGREEMENTS AND THEREAFTER GUARANTEES INCLUDE, BUT ARE NOT LIMITED TO, DISCLAIMERS IN CONNECTION WITH, AND/OR WITH RESPECT TO, THE FOLLOWING MATTERS (ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER, AND ALL OF WHICH BUYER HEREBY ACKNOWLEDGES IT IS NOT RELYING UPON): (I) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY OR MARKETABILITY, (II) ANY IMPLIED OR EXPRESS WARRANTY OF HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (III) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO PURCHASE MODELS OR SAMPLES OF MATERIALS, (IV) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (V) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (VI) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, (VII) LEASES OR OCCUPANCY AGREEMENTS WITH RESPECT TO THE PROPERTY OR THE ABILITY TO LEASE THE PROPERTY OR ANY PORTION THEREOF, (VIII) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY OR ANY PORTION THEREOF (OR THE OPERATION THEREOF) WITH GOVERNMENTAL OR QUASI-GOVERNMENTAL LAWS, RULES, ORDINANCES OR REGULATIONS (INCLUDING, WITHOUT LIMITATION, ANY ZONING LAWS, ORDINANCES OR REQUIREMENTS), (IX) THE NATURE, QUALITY OR PHYSICAL CONDITION OF THE PROPERTY, (X) THE CONSTRUCTION OF THE IMPROVEMENTS OR WHETHER THERE EXISTS ANY CONSTRUCTION DEFECTS THEREIN, (XI) THE WATER, SOIL AND GEOLOGY OF THE PROPERTY OR RELATING THERETO, (XII) THE INCOME TO BE DERIVED FROM THE PROPERTY, (XIII) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, (XIV) THE COMPLIANCE OF OR BY THE PROPERTY (OR THE OPERATION THEREOF) WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY OTHER PURPOSE; BODY HAVING JURISDICTION THEREOVER, (XV) THE STATUS OR CONDITION OF ENTITLEMENTS PERTAINING TO THE PROPERTY, (XVI) ANY MATTER REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., (XVII) ANY MATTERS RELATING TO HAZARDOUS MATERIALS, HAZARDOUS SUBSTANCES OR ENVIRONMENTAL LAWS, RULES, REGULATIONS OR REQUIREMENTS, AND (EXVIII) THE ADEQUACY OF PARKING IN CONNECTION WITH THE PROPERTY, AND (G) BY REASON OF ALL OF THE FOREGOING, SUBJECT TO BUYER ACCEPTS THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER SHALL NOT SEEK RECOVERY FROM SELLER FOR FULL RISK OF ANY LOSS OR DAMAGE OCCASIONED BY ANY FACT, CIRCUMSTANCE, CONDITION OR DEFECT PERTAINING TO THE PROPERTY, INCLUDING WITHOUT LIMITATION THE PRESENCE OF ANY ASBESTOS CONTAINING MATERIAL, HAZARDOUS, TOXIC OR RADIOACTIVE WASTE, SUBSTANCE OR MATERIALS IN, ON, UNDER OR ABOUT THE PROPERTY, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES AND RELEASES SELLER AND ALL OF ITS PARENTS, SUBSIDIARIES, AFFILIATES AND PARTNERSHIPS, OFFICERS, DIRECTORS, PROPERTY MANAGERS, ASSET MANAGERS, MANAGERS, SHAREHOLDERS, PARTNERS, MEMBERS, REPRESENTATIVES, AGENTS AND EMPLOYEES, AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND ASSIGNS AND EACH OF THEM (INDIVIDUALLY AND COLLECTIVELY, THE “RELEASED PARTIES”) FROM ANY AND ALL RIGHTS AND CLAIMS AGAINST SELLER AND/OR THE RELEASED PARTIES WITH RESPECT TO THE PROPERTY OR MATTERS RELATING TO THE PROPERTY (INCLUDING WITHOUT LIMITATION (I) THE CONDITION, VALUATION, MARKETABILITY OR UTILITY OF THE PROPERTY AND PROPERTY, (II) IN CONNECTION WITH ANY LEASES OR OCCUPANCY AGREEMENTS RELATING TO THE PROPERTY, (III) ANY RIGHTS OF BUYER UNDER THE STATE OR FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, AS AMENDED FROM TIME TO TIME, ANY OTHER ENVIRONMENTAL OR HAZARDOUS MATERIAL LAWS OR OTHER SIMILAR LAWS, (IV) IN CONNECTION WITH LATENT, PATENT, ALLEGED OR ACTUAL DESIGN OR CONSTRUCTION DEFICIENCIES OR DEFECTS (WHETHER RESULTING FROM ANY ACTS OR OMISSIONS OF SELLER, ANY SELLER PARTY, ANY PRIOR OWNER OF ALL OR ANY PORTION OF THE PROPERTY, OR ANY OTHER PARTY), AND (V) ANY OTHER MATTERS REFERENCED IN THIS PARAGRAPH 13.3). SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER ACKNOWLEDGES AND AGREES THAT THE FOREGOING WAIVER AND RELEASE INCLUDES ALL RIGHTS AND CLAIMS OF BUYER (AND ANY PERSON OR ENTITY CLAIMING BY, OR THROUGH, BUYER) AGAINST SELLER AND/OR ANY OTHER RELEASED PARTIES PERTAINING TO THE PROPERTY, WHETHER HERETOFORE OR NOW EXISTING OR HEREAFTER ARISING, OR WHICH COULD, MIGHT, OR MAY BE CLAIMED TO EXIST, OF WHATEVER KIND OR NATURE, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, LIQUIDATED OR UNLIQUIDATED, EACH AS THOUGH FULLY SET FORTH HEREIN AT LENGTH, WHICH IN ANY WAY ARISE OUT OF, OR ARE CONNECTED WITH, OR RELATE TO, THE PROPERTY. SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLERSELLER AND/OR THE OTHER RELEASED PARTIES. IN CONNECTION AND TO THE EXTENT PERMITTED BY LAW, SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT SUBJECT TO THE EXCEPTIONS AND EXCEPT AS PROVIDED BELOW, BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE RELEASE, DISCHARGE AND ACQUIT SELLER AND THE OTHER RELEASED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES. THE FOREGOING WAIVERS AND RELEASES BY BUYER SHALL SURVIVE (Y) THE CLOSING AND THE RECORDATION OF THE DEED, AND SHALL NOT BE DEEMED MERGED INTO THE DEED UPON ITS RECORDATION, AND/OR (Z) ANY TERMINATION OF THIS AGREEMENT. BUYER EXPRESSLY WAIVES THE BENEFITS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH AND THAT, IF KNOWN BY HIM OR HER MUST WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTORDEBTOR OR RELEASED PARTY.” /s/ HS TT BUYER’S INITIALS NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING PROVISIONSNotwithstanding anything to the contrary contained in this Paragraph 13.3, in no event shall the releases, waivers and limitations set forth in this Paragraph 13.3 (Ii) BUYER SHALL BE ENTITLED TO BRINGS CLAIMS AGAINST SELLER TO THE EXTENT AND SUBJECT TO THE LIMITATIONS OTHERWISE SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTSbe deemed to waive any express covenant of Seller under this Agreement that expressly survives Closing, INCLUDING WITHOUT LIMITATION CLAIMS FOR BREACH OF SELLER’S REPRESENTATIONS AND WARRANTIESsubject to the express limitations contained in this Agreement; (ii) modify or alter any of Seller’s representations, DEFAULT UNDER THIS AGREEMENT, OR CLAIMS FOR INDEMNITY OR ATTORNEYS FEES, AND NOTHING HEREIN SHALL BE CONSTRUED TO WAIVE OR RELEASE SUCH RIGHTS, AND warranties or covenants set forth in Paragraph 13.1 (IIor Buyer’s right to rely thereon) NONE OF THE FOREGOING RELEASES BY BUYER SHALL BE APPLICABLE IN THE EVENT OF SELLER’S INTENTIONAL MISREPRESENTATION OR FAILURE TO DISCLOSE TO BUYER ANY MATERIAL FACTsubject to the express limitations contained in this Agreement); (iii) apply to Seller’s actual fraud; or (iv) limit Seller’s indemnity obligations (if any) in connection with broker fees set forth in Paragraph 17 of this Agreement or Seller’s obligation to pay attorneys’ fees (if any) as expressly set forth in Paragraph 18 of this Agreement.
Appears in 1 contract
Samples: Agreement of Purchase and Sale (Armstrong Flooring, Inc.)
