AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)

AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS ~~AGREEMENT~~ AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)

AS-IS. ~~The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents~~ (a) Purchaser acknowledges that it is a an experienced and sophisticated purchaser of commercial real estate ~~investor and owner of real property and will conduct its own due diligence and investigations regarding~~ projects such as the Property and ~~Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents~~ that, prior to the end of the Study Period, it will have a full and ~~acknowledges that this Agreement provides Buyer with sufficient time and~~ complete opportunity to ~~complete~~ conduct such investigations, examinations, inspections and analyses of the ~~Physical Inspections~~ Property as Purchaser, in its absolute discretion, may deem appropriate. Purchaser further acknowledges that, except for the Seller Representations and ~~Other Investigations~~ any representations or warranties of Seller contained in the Conveyance Documents, Purchaser has not relied upon any statements, representations or warranties by Seller or any agent of Seller. (b) Purchaser agrees that the Property shall be sold and that Purchaser shall accept possession of the Property on the Closing Date strictly on an “AS IS, WHERE IS” AND “WITH ALL FAULTS, LIABILITIES, AND DEFECTS, LATENT OR OTHERWISE, KNOWN OR UNKNOWN” basis, with no right of set-off or reduction in the Purchase Price, and that, except for the Seller Representations and those of Seller contained in the Conveyance Documents, such sale shall be without representation or warranty of any kind, express or implied, including any warranty of income potential, operating expenses, uses, merchantability or fitness for a particular purpose, and Seller does hereby disclaim and renounce any such additional representation or warranty. Purchaser specifically acknowledges that, except for the Seller Representations or those of Seller in the Conveyance Documents, Purchaser is not relying on any other representations or warranties of any kind whatsoever, express or implied, from Seller, any other Seller Party or any broker or other agents as to any matters concerning the Property including: (1) the value of the Property, ; (2) any income to ~~review~~ be derived from the ~~Property Materials and to conduct any related due diligence~~ Property; (3) the suitability of the Property for any and all activities and uses which ~~Buyer or its consultants or agents deem necessary and appropriate~~ Purchaser may conduct thereon, including the possibilities for ~~Buyer to fully and completely evaluate the physical, environmental and economic condition~~ further development of the Property ~~and~~ or construction thereon; (4) the ~~Property's suitability~~ habitability, merchantability, marketability, profitability or fitness for ~~Buyer’s intended use. Buyer is purchasing~~ a particular purpose of the Property ~~solely in reliance upon Buyer’s own due diligence and investigation~~ or any improvements thereon; (5) the manner, quality, state of repair or lack of repair on the Property or any improvements thereon; (6) the nature, quality or condition of the Property, including with respect to water conditions, soil, geological or geotechnical condition (including soil expansiveness, corrosivity, or stability, or seismic, hydrological, geological and topographical conditions and configurations, including, without limitation, any opinions or conclusions of any soils engineer(s) retained to perform geotechnical and/or soils studies or to oversee any soils engineering aspects of developing the ~~Physical Inspections~~ Property); (7) the compliance of or by the Seller, the Property, or its operation with any codes, laws, rules, ordinances, regulations of any applicable governmental authority or body; (8) the manner or quality of the construction or materials incorporated into the Property; (9) compliance with environmental laws or land use laws, rules, regulations, orders, codes or requirements, including, but not limited to, the Americans with Disabilities Act of 1990, the Federal Water Pollution Control Act, the U.S. Environmental Protection Agency regulations at 40 CFR, Part 261, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and/or any rules or regulations promulgated under any of the foregoing (as the same may be amended from time to time); (10) the presence or absence of radon gas, methane gas, asbestos any other Hazardous Materials at, on, under, or adjacent to the Property; (11) the conformity of any improvements to any plans or specifications, including, without limitation, any plans and ~~Other Investigations~~ specifications that may have been or may be provided to Purchaser; (12) the conformity of the Property to past, current or future applicable zoning or building requirements; (13) deficiency of any undershoring; (14) deficiency of any drainage; (15) the fact that all or a portion of the Property may be located on or near an earthquake fault line or in or near an earthquake or seismic hazard zone; (16) the existence of vested land use, zoning or building entitlements affecting the Property; (17) water rights or the availability of or access to water; (18) the presence or suitability of any utilities or availability thereof; (19) the completeness or accuracy of any information provided to Purchaser by Seller or its agents; or (20) any other matter relating to the Property or to the development, construction, operation, or sale of the Property~~, and fully and completely represents, acknowledges, understands~~ . Purchaser further acknowledges and agrees that, except for Seller’s Representations, Seller ~~representations~~ is under no duty to make any affirmative disclosures or inquiry regarding any matter which may or may not be known to Seller or any of the other Seller Parties, and ~~warranties~~ Purchaser, for itself and for its successors and assigns, hereby expressly waives and releases Seller and each of the other Seller Parties from any such duty that otherwise might exist; provided, however, the foregoing provision shall not prevent Purchaser from relying on the Seller Representations, subject to the limitations and conditions relating thereto set forth in this Agreement. (c) Except as expressly provided below in this Section ~~3.1 of this Agreement~~ 6.5(c), Purchaser, for Purchaser and Purchaser’s successors and assigns, hereby releases Seller and the other Seller ~~Closing Documents~~Parties from, ~~Buyer is not relying upon~~ and irrevocably and unconditionally waives all claims and liability against Seller and each of the other Seller Parties for or attributable to, the following: (i) any ~~representations~~and all statements or opinions heretofore or hereafter made, ~~warranties~~ or ~~statements~~ information furnished, by or on behalf of the Seller Parties to Purchaser or any of Purchaser’s agents or representatives; and (ii) any and all losses, costs, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever, whether ~~oral~~ known or ~~written~~unknown and foreseen or unforeseen, ~~express~~ attributable to the Property, whether arising or ~~implied~~accruing before, ~~that Seller~~on or after the Closing and whether attributable to events or circumstances which have heretofore or may hereafter occur, ~~any direct or indirect constituent partner~~including all losses, ~~member or shareholder of Seller~~costs, ~~or any officer~~claims, ~~director~~liabilities, ~~shareholder~~expenses, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made demands and obligations with respect to the ~~following (collectively~~structural, ~~the "Condition and Suitability of the Property"): 1) the contents~~physical, ~~accuracy and completeness of the Property Materials, 2) any matters which were disclosed by~~ or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property ~~(including~~including claims or liabilities relating to the presence, ~~without limitation,~~ discovery or removal of any ~~contamination~~ Hazardous Materials in, onat, under or ~~adjacent to~~ about the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other ~~similar~~ matters described in Section 6.5(b). Purchaser acknowledges and agrees that (1) Purchaser may hereinafter discover facts different from or in addition to those now (or as of the Closing) known to Purchaser, (2) Purchaser’s agreement to release, acquit and discharge Seller and the other Seller Parties as set forth herein shall remain in full force and effect notwithstanding the existence or discovery of any such additional or different facts, (3) Purchaser knowingly waives any rights, privileges and benefits under any federal, state or local ~~laws~~law which may negatively impact the validity or enforceability of any part of the releases set forth in this Agreement, (4) upon the completion of the Closing, Seller shall be deemed to have satisfied all of Seller’s obligations, covenants and liabilities in this Agreement and in any documents executed by Seller in connection herewith other than those obligations of Seller that, by the express terms of this Agreement, survive the Closing (in which case such survival shall be subject to the limitations set forth in this Agreement), 11and (5) ~~compliance~~ Purchaser irrevocably covenants never to commence or prosecute, or to collude with others to commence or prosecute, against Seller or any ~~applicable covenants, conditions~~ other Seller Party any action or ~~restrictions (whether or not of record), 12) access to~~ proceeding based upon any claim covered by the ~~Property and~~ foregoing release. Purchaser understands the ~~right to use adjoining property or rights of way, 13) the possibility of conversion~~ legal significance of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents foregoing provisions and acknowledges and agrees that the ~~period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time~~ provisions of Section 6.5(b) and ~~opportunity to complete its review~~ this Section 6.5(c) were a material factor in Sellers’ acceptance of the ~~State~~ Purchase Price and that Sellers are unwilling to sell the Property unless Sellers and the other Seller Parties are expressly released as set forth in Section 6.5(b) and this Section 6.5(c). The releases contained in Section 6.5(b) and this Section 6.5(c) and elsewhere in this Agreement include claims of ~~Title~~ which Purchaser is presently unaware or which Purchaser does not presently suspect to exist, which, if known by Purchaser, would materially affect Purchaser’s release of Seller. Purchaser specifically waives the provisions of any law of any state, territory or jurisdiction the import of which is as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Notwithstanding anything to the ~~Property~~contrary in this Agreement, the provisions of Section 6.5(b) and ~~that~~this Section 6.5(c) shall survive the Closing. Notwithstanding the foregoing or anything herein to the contrary, ~~except for~~ the releases and waivers set forth in this Section 6.5(c) are not intended and shall not be construed to affect or impair any rights or remedies that Purchaser may have against Seller ~~representations and warranties~~ as a result of a breach of any of Seller Representations or those contained in the Conveyance Documents, or of any covenant of Seller expressly set forth in ~~Section 3.1 hereof~~this Agreement, ~~Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding~~ subject to the ~~accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges~~ terms and ~~agrees that the Property shall be conveyed by Seller and accepted by Buyer~~ limitations on ~~and~~ Seller’s liability as ~~of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly~~ set forth elsewhere in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerthis Agreement. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 1 contract

Samples: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)

AS-IS. ~~The~~ As of Buyer’s exercise of the Option in accordance with the terms and conditions of ~~this~~ Section ~~3.4 shall survive Closing indefinitely.~~1.2 hereof, Buyer will have: ~~3.4.1 Buyer represents that it is a sophisticated real estate investor~~ (a) examined and ~~owner of real property and will conduct its own due diligence and investigations regarding~~ inspected the Property and ~~Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents~~ will know and ~~acknowledges that this Agreement provides Buyer~~ be satisfied with ~~sufficient time~~ the physical condition, quality, quantity and ~~opportunity to complete the Physical Inspections and Other Investigations~~ state of ~~the Property, to review the Property Materials and to conduct any related due diligence~~ repair of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any ~~contamination in~~comparable local or state laws (collectively, onthe “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer; (b) reviewed the Property Information and all instruments, ~~under~~ records and documents which Buyer deems appropriate or ~~adjacent~~ advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Real Property or the ~~accuracy~~ business conducted thereon, and Buyer, by proceeding with this transaction following the expiration of ~~any floor plans~~the Due Diligence Period, ~~square footage estimates, drawings, renderings or lease abstracts, 9~~shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer; (c) ~~whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with~~ reviewed all applicable ~~statutes,~~ laws~~, codes~~, ordinances, rules and governmental regulations ~~or requirements relating to the use~~(including, ~~operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including~~ but not limited to, those relating to building, zoning and land use) affecting the ~~ADA~~development, ~~OSHA~~use, occupancy or enjoyment of the ~~Subdivision Map Act~~Real Property, and Buyer, by proceeding with this transaction following the ~~Toxic Substances Control Act~~expiration of the Due Diligence Period, shall be deemed to have determined that the ~~Comprehensive Environmental Response~~same are satisfactory to Buyer; and (d) at its own cost and expense, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the ~~right to use adjoining property or rights~~ advice of ~~way~~its consultants in entering into this Agreement, ~~13)~~ and Buyer, by proceeding with this transaction following the ~~possibility of conversion~~ expiration of the ~~Property~~ Due Diligence Period, shall be deemed to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees have determined that the ~~period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity~~ same are satisfactory to ~~complete its review of the State of Title to the Property~~Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ~~and that~~AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), ~~except for Seller representations and warranties expressly set forth in Section 3.1 hereof~~THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, ~~Seller makes no representation or warranty of any kind or nature whatsoever~~COVENANT, ~~either express or implied~~OR WARRANTY OF ANY KIND (WHETHER EXPRESS, ~~regarding the accuracy or completeness of the Property Materials~~IMPLIED, ~~the Title Report or the Survey~~OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. ~~Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "~~AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS, ” AND “WHERE IS” BASIS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS ~~SUCCESSORS~~ OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND ~~ASSIGNS~~ LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY ~~OTHER PARTY~~ REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER ~~BUYER~~OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY ~~WAIVES~~AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH BUYER IS TAKING THE PROPERTY OR “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE ~~CONDITION~~ PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND ~~SUITABILITY THEREOF, WHETHER CAUSED BY~~ (C) BUYER TAKES THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IN IMPLIED WARRANTIES (EXCEPT FOR THE ~~SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR~~ LIMITED WARRANTIES OF ~~BUYER~~ TITLE SET FORTH IN ~~THIS AGREEMENT OR IN~~ THE ~~SELLER CLOSING DOCUMENTS~~DEED AND SELLER’S WARRANTIES). WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE ~~RELEASED MATTERS~~FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND: 1. THE ~~PARTIES HEREBY ACKNOWLEDGE THAT EACH~~ CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF; 2. THE CONTENT OR ACCURACY OF ANY OF THE ~~RELEASED PARTIES~~ ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE CONDITION OF THE PROPERTY; OR 3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER ~~THAN~~ INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S INTENDED ~~TO BE A THIRD-PARTY BENEFICIARY~~ USE. THE PROVISIONS OF THIS SECTION ~~3.4.2. NOTHING IN~~ 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS ~~SECTION 3.4.2~~ AGREEMENT AND SHALL ~~SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO~~ NOT BE MERGED INTO THE ~~CLOSING DATE~~DOCUMENTS EXECUTED AT CLOSE OF ESCROW.

Appears in 1 contract

Samples: Option Agreement (KBS Growth & Income REIT, Inc.)

AS-IS. ~~The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1~~ Buyer ~~represents~~ acknowledges that it is ~~a sophisticated real estate investor~~ familiar with each of the Properties and ~~owner~~ has had the opportunity, directly or through its representatives to inspect each of ~~real property~~ the Properties and ~~will~~ conduct ~~its own~~ due diligence ~~and investigations regarding~~ activities. Without limitation of the ~~Property and Buyer’s intended uses thereof as provided for in this Agreement.~~ foregoing, Buyer ~~further represents and~~ acknowledges that ~~this Agreement provides Buyer with sufficient time and opportunity~~ the Purchase Price has been negotiated based on Buyer's express agreement that there would be no contingencies (financial or otherwise) to ~~complete~~ Closing other than the ~~Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which~~ conditions set forth in Article IX hereof. Buyer or its ~~consultants~~ Representatives shall have fully examined and inspected the Properties prior to the execution of this Agreement, and subject to the provisions of this Article XII and each Seller's representations, warranties and covenants expressly set forth herein or ~~agents deem necessary~~ any certificate, instrument or agreement delivered pursuant hereto and ~~appropriate for~~ subject to the conditions set forth herein, Buyer agrees to ~~fully and completely evaluate~~ accept the ~~physical, environmental and economic~~ Properties in an "AS IS" condition as of the ~~Property and the Property's suitability for Buyer’s intended use~~Closing. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except ~~for Seller representations and warranties expressly set forth~~ as provided in ~~Section 3.1 of~~ this Agreement ~~and the Seller Closing Documents~~or any certificate, instrument or agreement delivered pursuant to this Agreement, Buyer is not relying upon any representations, statements, or warranties ~~or statements of any kind or nature whatsoever, whether~~ (oral or written, ~~express~~ implied or ~~implied~~express) of any officer, ~~that Seller~~employee, agent or Representative of any ~~direct or indirect constituent partner, member or shareholder of~~ Seller, or any ~~officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate~~ salesperson or ~~subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible~~ broker (~~collectively, the "Released Parties"), may have made with respect~~ if any) involved in this transaction as to the ~~following~~ Properties, including, but not limited to: (~~collectively~~a) any representation, statements or warranties as to the ~~"Condition and Suitability~~ physical condition of the ~~Property"): 1~~Properties, (b) the ~~contents, accuracy and completeness~~ fitness and/or suitability of the ~~Property Materials~~Properties for use as a hotel and casino, ~~2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3~~(c) the financial performance ~~or the economic prospects~~ of the ~~Property~~Properties, 4(d) the ~~applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability~~ compliance of the ~~Property~~Properties with applicable building, ~~the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use~~zoning, ~~6) the environmental condition of the Property (including~~subdivision, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systemsenvironmental, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, lawsland use Laws, codes, ordinances, ~~regulations~~ rules or ~~requirements~~ regulations, (e) the state of repair of the Properties, (f) the value of the Properties, (g) the manner or quality of construction of the Properties, (h) the income derived or to be derived from the Properties, or (i) the fact that the Properties may be located on earthquake faults or in seismic hazardous zones. Other than in accordance with Article XI hereof, Buyer, for itself and its successors and assigns, waives any right to assert any claim against any Seller, at Law or in equity, relating to ~~the use~~any such matter, ~~operation~~whether latent or patent, ~~leasing~~disclosed or undisclosed, ~~zoning~~known or unknown, ~~subdivision~~in contract or tort, ~~planning, building, fire, safety, health~~ now existing or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerhereafter arising. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 1 contract

Samples: Asset Purchase Agreement (Caesars Entertainment Inc)

AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its ~~consultants or agents deem necessary~~ Representatives to the extent it so desires shall have examined and ~~appropriate for~~ inspected the Purchased Assets prior to the execution of this Agreement, and subject to the provisions of this Article and Article 4, Buyer agrees to ~~fully and completely evaluate~~ accept the ~~physical, environmental and economic~~ Purchased Assets in an “AS IS” condition as of the ~~Property and the Property's suitability for Buyer’s intended use~~Closing, except as provided in Article 4 hereof. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except ~~for Seller representations and warranties expressly set forth~~ as provided in ~~Section 3.1 of this Agreement and the Seller Closing Documents~~Article 4 hereof, Buyer is not relying upon any representations, statements, or warranties ~~or statements of any kind or nature whatsoever, whether~~ (oral or written, ~~express~~ implied or ~~implied~~express) of any officer, ~~that Seller~~employee, ~~any direct~~ agent or ~~indirect constituent partner, member or shareholder~~ Representative of Seller, or any ~~officer~~salesperson or broker (if any) involved in this transaction as to the Purchased Assets, ~~director~~including, ~~shareholder~~but not limited to: (a) any representation, ~~employee~~statements or warranties as to the physical condition of the Purchased Assets, ~~agent, representative, broker, servant, successor, assign, affiliate or subsidiary~~ including implied warranties of ~~any of them, or~~ merchantability and fitness for a particular purpose and any other ~~person~~ warranties provided or ~~entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible~~ implied by applicable Law; (~~collectively,~~ b) the ~~"Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability~~ fitness and/or suitability of the ~~Property"): 1) the contents~~Purchased Assets for use as a resort, ~~accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3~~hotel and/or casino; (c) the financial performance ~~or the economic prospects~~ of the ~~Property, 4~~Purchased Assets; (d) the ~~applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability~~ compliance of the ~~Property~~Purchased Assets with applicable building, ~~the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use~~zoning, ~~6) the environmental condition of the Property (including~~subdivision, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systemsenvironmental, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, lawsland use Laws, codes, ordinances, ~~regulations~~ rules or ~~requirements~~ regulations; (e) the state of repair of the Purchased Assets; (f) the value of the Purchased Assets; (g) the manner or quality of construction of the Purchased Assets; (h) the income derived or to be derived from the Purchased Assets; or (i) the fact that the Purchased Assets may be located in hurricane zones, on earthquake faults or in seismic hazardous zones. Subject to the foregoing sentence, Buyer, for itself and its successors and assigns, waives any right to assert any claim against Seller, at Law or in equity, relating to ~~the use~~any such matter, ~~operation~~whether latent or patent, ~~leasing~~disclosed or undisclosed, ~~zoning~~known or unknown, ~~subdivision~~in contract or tort, ~~planning, building, fire, safety, health~~ now existing or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerhereafter arising. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 1 contract

Samples: Asset Purchase Agreement (Trump Entertainment Resorts, Inc.)

AS-IS. ~~The~~ (a) Except as otherwise expressly provided herein, Buyer hereby acknowledges that the Premises is being sold "AS-IS, WHERE-IS, AND WITH ALL FAULTS." (b) This Agreement, as written, contains all the terms of the agreement entered into between the parties as of the date hereof, and Buyer acknowledges that, except as otherwise expressly provided and set forth in this ~~Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents that it is a sophisticated real estate investor~~ Agreement, neither Seller nor any affiliates of Seller, nor any of their respective agents or representatives, nor Broker has made any representations or held out any inducements to Buyer, and ~~owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for~~ Seller hereby specifically disclaims any representation, oral or written, past, present or future, other than those expressly set forth in this Agreement. ~~Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete~~ Without limiting the ~~Physical Inspections and Other Investigations~~ generality of the ~~Property~~foregoing, ~~to review the Property Materials and to conduct~~ Buyer has not relied on any ~~related due diligence of the Property which Buyer~~ representations or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Propertywarranties, and ~~fully and completely represents~~neither Seller nor any affiliates of Seller, ~~acknowledges, understands and agrees that, except for Seller~~ nor any of their respective agents or representatives has or is willing to make any representations ~~and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties~~ or ~~statements of any kind or nature whatsoever, whether oral or written~~warranties, express or implied, ~~that Seller~~other than as may be expressly set forth herein, as to (i) the status of title to the Premises, (ii) the current or future real estate tax liability, assessment or valuation of the Premises; (iii) the potential qualification of the Premises for any ~~direct or indirect constituent partner~~and all benefits conferred by applicable law whether for subsidies, ~~member or shareholder of Seller~~special real estate tax treatment, ~~or any officer~~insurance, ~~director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them,~~ mortgages or any other ~~person~~ benefits, whether similar or ~~entity acting on behalf~~ dissimilar to those enumerated; (iv) the nature and extent of ~~Seller~~ any right-of-way, lease, possession, lien, encumbrance, license, reservation, condition or otherwise; (v) the availability of any ~~such other party~~ financing for ~~whom Seller~~ the purchase, alteration, rehabilitation or ~~such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability~~ operation of the ~~Property"): 1) the contents~~Premises from any source, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any ~~contamination in, on, under~~ government authority or ~~adjacent to the Property by~~ any ~~solid, hazardous~~ lender; or ~~toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7~~(vi) the ~~physical condition~~ current or ~~quality~~ future use of the ~~Property~~Premises, ~~including~~ including, without ~~limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof~~limitation, the ~~adequacy of the roofs~~premises use for commercial, ~~foundations, structural integrity~~ manufacturing or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9general office purposes. (c) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer ~~further represents and~~ acknowledges and agrees that (i) any reports or other information regarding the ~~period from~~ Premises delivered or made available to Buyer and Buyer's representatives by Seller or Seller's affiliates, or any of their respective agents or representatives, pursuant to or in accordance with Paragraph 8 hereof or this Agreement (collectively, the ~~Effective Date until~~ "Premises Information") may have been prepared by third parties and may not be the ~~Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review~~ work product of ~~the State~~ Seller and/or any of ~~Title to the Property~~Seller's affiliates; (ii) neither Seller nor any affiliate of Seller has made any independent investigation or verification of, ~~and that~~or has any knowledge of, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the ~~Property Materials,~~ Premises Information; (iii) the ~~Title Report~~ Premises Information delivered or made available to Buyer and Buyer's representatives is furnished to each of them at the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereofrequest, and ~~with no right of setoff or reduction in~~ for the ~~Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials~~convenience of, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.;

Appears in 1 contract

Samples: Agreement to Sell and Purchase Real Estate (Acadia Realty Trust)

AS-IS. ~~The terms of this Section 3.4 shall survive Closing indefinitely.~~ 3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this ~~Agreement and the Seller Closing Documents~~Agreement, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), F:\71018.005\Purchase Agreement\Purchase Agreement – Xxxxxx Village v8.doc may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 ~~BUYER~~Except as set forth in this Agreement with respect to the breach of any F:\71018.005\Purchase Agreement\Purchase Agreement – Xxxxxx Village v8.doc representations or warranties of Seller, ~~FOR ITSELF~~Buyer, ~~AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY~~for itself, ~~THROUGH OR UNDER BUYER~~and its affiliates, ~~HEREBY WAIVES~~successors and assigns and any other party claiming by, ~~RELEASES~~through or under Buyer, ~~REMISES~~hereby waives, ~~ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES~~releases, ~~OF AND FROM ANY CLAIMS~~remises, ~~ACTIONS~~acquits and forever discharges the Released Parties, ~~CAUSES OF ACTION~~of and from any claims, ~~DEMANDS~~actions, ~~RIGHTS~~causes of action, ~~DAMAGES~~demands, ~~COSTS~~rights, ~~EXPENSES~~damages, ~~PENALTIES~~costs, ~~FINES OR COMPENSATION WHATSOEVER~~expenses, ~~WHETHER DIRECT OR INDIRECT~~ penalties, fines or compensation whatsoever, whether direct or indirect (~~COLLECTIVELY~~collectively, ~~THE~~ the "Claims"), ~~WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF~~which any of them now has or may have in the future on account of or in any way arising out of or in connection with the Property or the Condition and Suitability thereof, ~~WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING~~ whether caused by the Released Parties or any other party and whether or not known to Buyer at or before the Closing (~~COLLECTIVELY~~collectively, ~~THE~~ the "Released Matters"). ~~NOTWITHSTANDING ANYTHING TO THE CONTRARY~~Without limitation on the foregoing, ~~RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS~~Buyer hereby assumes full responsibility for any injuries, ~~WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS~~damages, ~~(II) SELLER’S FRAUD~~losses or liabilities that may arise or have arisen out of the Released Matters, ~~OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS~~whether known or unknown. ~~WITHOUT LIMITATION ON THE FOREGOING~~Buyer acknowledges and hereby expressly agrees this Agreement shall extend to all unknown, ~~BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES~~unsuspected and unanticipated claims or damages, ~~DAMAGES~~as well as those which are now disclosed, ~~LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN~~with respect to the Released Matters. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION The parties hereby acknowledge that each of the Released Parties other than Seller is intended to be a third party beneficiary of this Section 3.4.2~~. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE~~.

Appears in 1 contract

Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)

AS-IS. ~~The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents~~ (a) Purchaser expressly acknowledges that ~~it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding~~ the Property is being sold and ~~Buyer’s intended uses thereof~~ accepted “AS-IS, WHERE-IS, WITH ALL FAULTS” except as may otherwise be specifically provided ~~for~~ in this Agreement~~. Buyer further represents~~ . (b) This Agreement, as written, contains all of the terms of the agreement entered into between the parties as of the date hereof, and Purchaser acknowledges that ~~this Agreement provides Buyer with sufficient time and opportunity~~ neither Seller nor any of Seller’s affiliates, nor any of their agents or representatives, has made any representations or held out any inducements to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, Purchaser except ~~for Seller representations and warranties expressly~~ as set forth in ~~Section 3.1 of~~ this Agreement, or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby, and ~~the~~ Seller ~~Closing Documents~~hereby specifically disclaims any representation, ~~Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether~~ oral or written, past, present or future, other than those specifically set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing, Purchaser has not relied on any representations or warranties, and neither Seller nor any of Seller’s affiliates, nor any of their agents or representatives has or is willing to make any representations or warranties, express or implied, other than as may be expressly set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby. (c) In the event this Agreement is not terminated then, it shall be deemed an acknowledgment by Purchaser that Purchaser has inspected the Property, is thoroughly acquainted with and accepts its condition, and has reviewed, to the extent necessary in its discretion, all the Property Information (as hereinafter defined). Except as set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby, Seller shall not be liable or bound in any manner by any oral or written “setups” (marketing packages containing information about the Property) or information pertaining to the Property or the rents furnished by Seller, Seller’s affiliates, their agents or representatives, any ~~direct~~ real estate broker, or ~~indirect constituent partner~~other person. (d) Except as set forth in this Agreement (including without limitation all documents executed in connection with the Closing and any other documents or instruments delivered by Seller to Purchaser in connection with Closing), ~~member or shareholder of~~ Purchaser hereby waives, releases and forever discharges Seller, ~~or any officer~~its affiliates, ~~director~~subsidiaries, ~~shareholder~~officers, ~~employee~~directors, ~~agent~~shareholders, ~~representative~~employees, ~~broker~~independent contractors, ~~servant~~partners, ~~successor~~representatives, ~~assign~~agents, ~~affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible~~ successors and assigns (collectively, the "“Released Parties"”), and each of them, from any and all causes of action, claims, assessments, losses, damages (compensatory, punitive or other), liabilities, obligations, reimbursements, costs and expenses of any kind or nature, actual, contingent, present, future, known or unknown, suspected or unsuspected, including, without limitation, interest, penalties, fines, and attorneys’ and experts’ fees and expenses, whether caused by, arising from, or premised, in whole or in part, upon Seller’s acts or omissions, and notwithstanding that such acts or omissions are negligent or intentional, or premised in whole or in part on any theory of strict or absolute liability, which Purchaser, its successors or assigns, may have ~~made with respect~~ or incur in any manner or way connected with, arising from, or related to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6including without limitation (i) the environmental condition of the ~~Property~~ Property, or (~~including, without limitation, any contamination in, on, under~~ ii) actual or ~~adjacent to~~ alleged violations of environmental laws or regulations in connection with the Property by and/or any ~~solid~~property conditions. Purchaser agrees, ~~hazardous or toxic substance, material or waste, including lead paint, asbestos~~ represents and ~~toxic or other mold and mildew), 7)~~ warrants that the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems matters released herein are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to matters which are known, disclosed, suspected or foreseeable, and Purchaser hereby waives any and all rights and benefits which it now has, or in the ~~ADA~~future may have, ~~OSHA,~~ conferred upon Purchaser by virtue of the ~~Subdivision Map Act,~~ provisions of any law which would limit or detract from the ~~Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation~~ foregoing general release of known and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access unknown claims. Notwithstanding anything contained herein to the ~~Property and~~ contrary, Purchaser shall have the right to ~~use adjoining property~~ implead Seller into any third party tort claim or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or action relating to ~~the Property, including but not limited to those~~ matters ~~relating~~ arising prior to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of BuyerClosing. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (Ie) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATEThe provisions of this Section 13.12 shall survive the termination of this Agreement and the Closing.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Highlands REIT, Inc.)

AS-IS. ~~The terms~~ As of ~~this Section 3.4 shall survive~~ the Closing ~~indefinitely.~~Date, Buyer will have: ~~3.4.1 Buyer represents that it is a sophisticated real estate investor~~ (a) examined and ~~owner of real property~~ inspected the Portfolio and will ~~conduct its own due diligence~~ know and ~~investigations regarding~~ be satisfied with the ~~Property~~ physical condition, quality, quantity and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations state of repair of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely Portfolio in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property all respects (including, without limitation, the compliance of the Real Properties with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any ~~contamination in~~comparable local or state laws (collectively, onthe “ADA”)) and by consummating this transaction at the Close of Escrow, ~~under~~ shall be deemed to have determined that the same is satisfactory to Buyer; (b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or ~~adjacent~~ advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, Real Properties or the ~~functionality~~business conducted thereon, ~~location~~ and ~~accessibility thereof~~Buyer, by consummating this transaction at the ~~adequacy~~ Close of Escrow, shall be deemed to have ACTIVE 31157768v21 ‑22‑ determined that the ~~roofs, foundations, structural integrity or earthquake preparedness of~~ same and the ~~Property, the quality of construction~~ information and ~~sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic~~ data contained therein and ~~hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9~~evidenced thereby are satisfactory to Buyer; (c) ~~whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with~~ reviewed all applicable ~~statutes,~~ laws~~, codes~~, ordinances, rules and governmental regulations ~~or requirements relating to the use~~(including, ~~operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including~~ but not limited to, those relating to building, zoning and land use) affecting the ~~ADA~~development, ~~OSHA~~use, occupancy or enjoyment of the ~~Subdivision Map Act~~Real Properties, and Buyer, by consummating this transaction at the ~~Toxic Substances Control Act~~Close of Escrow, shall be deemed to have determined that the ~~Comprehensive Environmental Response~~same are satisfactory to Buyer; and (d) at its own cost and expense, ~~Compensation~~ made its own independent investigation respecting the Portfolio and ~~Liability Act~~all other aspects of this transaction, and shall have relied thereon and on the ~~Clean Water Act~~advice of its consultants in entering into this Agreement, and Buyer, by consummating this transaction at the ~~Resource Conservation and Recovery Act and any other similar federal~~Close of Escrow, ~~state or local laws~~shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEEDS DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), 11THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) ~~compliance with any applicable covenants~~BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "BUYER AGREES TO ACCEPT THE PORTFOLIO ON AN “AS IS, ” AND “WHERE IS” BASIS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA (AS DEFINED ABOVE)). BUYER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S WARRANTIES, BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS ~~SUCCESSORS~~ OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND ~~ASSIGNS~~ LEGAL CONDITION OF THE PORTFOLIO AND THAT, EXCEPT FOR SELLER’S WARRANTIES, BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY ~~OTHER PARTY~~ REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER ~~BUYER~~OR ON SELLER’S BEHALF CONCERNING THE PORTFOLIO. ADDITIONALLY, BUYER AND SELLER HEREBY ~~WAIVES~~AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, ~~RELEASES~~BUYER IS TAKING THE PORTFOLIO “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, ~~REMISES~~THERE IS NO WARRANTY BY SELLER THAT THE PORTFOLIO IS FIT FOR A PARTICULAR PURPOSE, ~~ACQUITS~~ (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS ACTIVE 31157768v21 ‑23‑ SOLELY RELYING UPON ITS EXAMINATION OF THE PORTFOLIO, AND ~~FOREVER DISCHARGES~~ (C) BUYER TAKES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN PORTFOLIO UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IN IMPLIED WARRANTIES (EXCEPT FOR THE ~~SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR~~ LIMITED WARRANTIES OF ~~BUYER~~ TITLE SET FORTH IN ~~THIS AGREEMENT OR IN~~ THE ~~SELLER CLOSING DOCUMENTS~~DEEDS AND SELLER’S WARRANTIES). WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE ~~RELEASED MATTERS~~FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND: 1. THE ~~PARTIES HEREBY ACKNOWLEDGE THAT EACH~~ CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PORTFOLIO OR ANY ASPECT THEREOF; 2. THE CONTENT OR ACCURACY OF ANY OF THE ~~RELEASED PARTIES~~ ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE CONDITION OF THE PORTFOLIO; 3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER ~~THAN~~ INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PORTFOLIO. BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTIES MAY OR MAY NOT CONTAIN ASBESTOS AND, IF A REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTIES AND THEIR SUITABILITY FOR BUYER’S INTENDED ~~TO BE A THIRD-PARTY BENEFICIARY~~ USE. THE PROVISIONS OF THIS SECTION ~~3.4.2~~11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW. ~~NOTHING IN~~ NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY CONTAINED HEREIN, THE PROVISIONS OF THIS SECTION ~~3.4.2~~ 11.2 SHALL ~~SERVE~~ NOT APPLY TO ~~RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.~~(a) SELLER’S WARRANTIES, AND (b) ANY SELLER’S FRAUD. /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS BUYER’S INITIALS

Appears in 1 contract

Samples: Portfolio Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)

AS-IS. ~~The terms~~ (a) Subject to Section 5.03 of this ~~Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents~~ Agreement, Purchaser acknowledges that ~~it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence~~ Purchaser has made thorough inspections and investigations ~~regarding~~ of the Property and ~~Buyer’s intended uses thereof~~ Purchaser agrees to take title to the Property "AS-IS, WHERE IS, AND WITH ALL FAULTS" and in the condition existing as ~~provided for in~~ of the date of this Agreement~~. Buyer further represents~~ , subject to reasonable use, ordinary wear and ~~acknowledges that this Agreement provides Buyer with sufficient time~~ tear, and ~~opportunity to complete the Physical Inspections and Other Investigations~~ without any reduction in or abatement of the ~~Property, to review the Property Materials and to conduct any related due diligence~~ Purchase Price. Purchaser has undertaken all such investigations of the Property ~~which Buyer~~ as Purchaser deems necessary or ~~its consultants or agents deem necessary and~~ appropriate ~~for Buyer~~ under the circumstances as to ~~fully and completely evaluate~~ the ~~physical, environmental and economic condition~~ status of the Property and the ~~Property's suitability for Buyer’s intended use~~existence or non-existence of curative action to be taken with respect to any hazardous or toxic substances on or discharged from the property, and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel, and officers. (b) Neither party to this Agreement is relying on any statement or representation not expressly stated in this Agreement. ~~Buyer is purchasing~~ Purchaser specifically confirms and acknowledges that in entering into this Agreement, Purchaser has not been induced by, and has not relied upon, whether express or implied, warranties, guaranties, promises, statements, inducements, representations, or information pertaining to the Property ~~solely in reliance upon Buyer’s own due diligence and investigation~~ or its uses, the physical condition, environmental condition, state of title, income, expenses, or operation of the Property, ~~including the Physical Inspections and Other Investigations of the Property~~or any other matter or thing with respect thereto, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties written or ~~statements of any kind or nature whatsoever~~unwritten, whether ~~oral~~ made by Seller or ~~written~~any agent, ~~express~~ employee, or ~~implied, that Seller, any direct or indirect constituent partner, member or shareholder~~ other representative of Seller, or any ~~officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them,~~ broker or any other person representing (or ~~entity acting on behalf~~ purporting to represent) Seller, which are not expressly set forth in this Agreement. Seller shall not be liable for or bound by any written or unwritten statements, representations, warranties, brokers' statements, or other information pertaining to the Property furnished by Seller, any broker, any agent, employee, or other actual (or purported) representative of ~~Seller~~ Seller, or any ~~such other party for whom~~ person, unless and only to the extent the same are expressly set forth in this Agreement. (c) Seller ~~or such other party may be held legally responsible (collectively, the "Released Parties"), may have made~~ makes no warranty with respect to the ~~following~~ presence of any hazardous or toxic substances on, above, beneath, or discharged from the Property (~~collectively~~or any adjoining or neighboring property) or in any water on or under the Property. The Closing hereunder shall be deemed to constitute an express waiver of Purchaser's right to recover from Seller, and upon the ~~"Condition~~ Closing, Purchaser forever releases, covenants not to sue, and ~~Suitability~~ discharges Seller from, any and all damages, demands, claims, losses, liabilities, penalties, fines, liens, judgments, costs, or expenses whatsoever, including attorneys' fees and costs, whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on account of or in any way be connected with the physical condition of the Property~~"): 1~~. (d) The provisions of this Section 2.02 shall survive the ~~contents, accuracy~~ Closing and ~~completeness~~ shall not be deemed to have merged into any of the ~~Property Materials, 2) any matters which were disclosed by~~ documents executed or ~~should have been disclosed by~~ delivered at the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of BuyerClosing. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 1 contract

Samples: Purchase and Sale Agreement

AS-IS. ~~The terms~~ Buyer's purchase of ~~this Section 3.4~~ the Property shall ~~survive Closing indefinitely.~~be subject to the following: ~~3.4.1~~ a. Buyer ~~represents~~ agrees to purchase the Property "as is" and "with all faults," solely in reliance on Buyer's own investigation of the Property. Buyer acknowledges that it is has conducted a ~~sophisticated real estate investor~~ review of the physical and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations environmental condition of the Property, the expenses of owning and operating the Property, the extent to ~~review~~ which the Property ~~Materials~~ complies with governmental laws, ordinances, rules and ~~to conduct any related due diligence of~~ regulations, the ~~Property which Buyer~~ present and proposed land use regulations that affect or ~~its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of~~ may affect the Property and the ~~Property's suitability~~ fitness of the Property for Buyer~~’s intended~~ 's proposed use, among other things. In undertaking its investigation, Buyer has been and will be advised by attorneys, and other advisors. EXHIBIT "B" b. Buyer acknowledges that Seller makes no representations or warranties express or implied wit respect to the Property. In light of Buyer's willingness to diligently investigate and evaluate the Property and to accept the Property on an "as is" and "with all faults" basis, the parties have negotiated the terms and conditions of this Agreement, including the Purchase Price. Buyer acknowledges that Buyer is purchasing the Property ~~solely in reliance upon Buyer’s own due diligence~~ "as is" and ~~investigation~~ "with all faults", without other express or implied warranties of Seller. c. By acquiring the Property Buyer shall be deemed to have waived any and all objections to the physical characteristics, including acreage, size of improvements and conditions of the Property which would be disclosed by such inspection or otherwise; and agreed to purchase the Property having inspected and accepted the condition and repair of the improvements, and without regard to any other physical or environmental condition of the Property, including ~~the Physical Inspections~~ (without limitation) topography, climate, soil, subsoil, existing fill, drainage and ~~Other Investigations of the Property~~surface and groundwater quality, and ~~fully~~ without regard to air and ~~completely represents~~water rights, ~~acknowledges~~the availability of utilities and water, ~~understands~~ present and ~~agrees that~~future zoning, ~~except~~ purposes for ~~Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and~~ which the ~~Seller Closing Documents~~Property is suited, ~~Buyer is not relying upon any representations~~access to public roads, ~~warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller~~proposed routes, or ~~any officer~~enlargement of roads or extensions thereof, ~~director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate~~ present or ~~subsidiary of any of them,~~ future assessments or any other ~~person~~ condition or ~~entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively,~~ matter affecting the ~~"Released Parties"), may have made with respect~~ Property. d. Except to the ~~following (collectively~~extent such matter is caused by a breach by Seller under this Agreement, Buyer hereby waives, releases, acquits, and forever discharges Seller, and Seller's agents, directors, officers and employees to the ~~"Condition~~ maximum extent permitted by law, of and ~~Suitability~~ from any and all claims, actions, causes of action, demands, rights, liabilities, damages, losses, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, that it now has or which may arise in the future on account of or in any way growing out of or connected with the Property~~"): 1)~~ ; including, without limitation; i. the ~~contents, accuracy and completeness~~ existence or condition of any improvements on the Property ~~Materials, 2) any matters which were disclosed by or should have been disclosed by~~ and/or the ~~Physical Inspections~~ personal property; ii. the physical and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental ~~condition~~ conditions of the Property (including, without ~~limitation, any contamination~~ limitation the existence of Hazardous Materials in, on, ~~under~~ or ~~adjacent~~ about the Property; iii. the state of the title to the Property; iv. any settlement or subsidence of any fill or filled ground on the Property by or settlement or subsidence of construction thereon, if any; EXHIBIT "B" v. any ~~solid~~governmental laws and regulations, including, but not limited to, zoning, environmental, asbestos control, hazardous or toxic ~~substance,~~ waste and/or material ~~or waste, including lead paint, asbestos~~ and ~~toxic or other mold~~ land use laws and ~~mildew), 7)~~ regulations to which the ~~physical condition or quality~~ Property may be subject; and vi. Buyer's contemplated use of the Property. BUYER EXPRESSLY WAIVES ANY OF ITS RIGHTS GRANTED UNDER CALIFORNIA CIVIL CODE SECTION 1542, ~~including without limitation the plumbing~~WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, ~~sewer, HVAC, electrical, mechanical and similar operating systems~~WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." SELLER__________ BUYER ______________ e. Buyer acknowledges that Seller has furnished, or ~~the functionality~~may furnish, ~~location~~ to Buyer certain "third party" items, which may include, without limitation, items prepared by third party architects, contractors, title companies, and ~~accessibility thereof~~consultants, ~~the adequacy of the roofs~~such as engineering data, ~~foundations~~title reports and related title information, ~~structural integrity or earthquake preparedness of the Property~~Hazardous Materials reports and information, ~~the quality of construction~~ feasibility reports, soils reports, building plans and ~~sufficiency of undershoring~~specifications, ~~or any soils, subsurface, subsidence, drainage, seismic, geologic~~ utility plans and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other ~~similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access~~ information pertaining to the Property and the ~~right to use adjoining property or rights of way, 13) the possibility of conversion~~ construction and installation of the ~~Property~~ Improvements and the Equipment and Components. It is agreed that all such "third party" items are furnished without representation or warranty on the part of Seller whatsoever, and Buyer agrees that Buyer will not assert any liability against Seller in any regard as to ~~condominiums~~ such "third Party" items. f. Any disclosure whatsoever to Buyer pursuant to this Agreement shall not constitute a warranty or representation of Seller. To the extent any information provided by Seller shall be known by Buyer or Buyer's ~~ability~~ agents (all such knowledge of Buyer's Agents being imputed to Buyer) to be untrue or inaccurate as a result of any disclosure to Buyer by Seller prior to closing, with Seller hereby agreeing to advise Buyer, prior to closing of any changes in information of which Seller has actual knowledge; or any investigation conducted by Buyer or on behalf of Buyer prior to the Close of Escrow or as a result of any knowledge otherwise acquired by Buyer or any of Buyer's Agents, Buyer shall have no rights under this Agreement by reason of that particular untruth or inaccuracy, and any such information provided by Seller shall be deemed to be modified to the extent necessary to render it consistent with such knowledge. g. Upon the close of escrow. Seller shall assign to Buyer any existing warranties which Seller may have received from the building contractor to the extent the EXHIBIT "B" same may be assigned, provided that Seller shall have no obligation to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyersuch warranties. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.

Appears in 1 contract

Samples: Lease Agreement (Avanex Corp)

Common use of AS-IS Clause in Contracts