AS-IS. As a material inducement to the execution and delivery of this Agreement by Seller and the performance by Seller of its duties and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agree, to and with the Seller that except as expressly provided in Paragraph 13.1, and for the duration set forth in Paragraph 13.1 (i) Buyer is purchasing the Property in an "AS-IS" condition as of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this Agreement, including, without limitation, the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of the Property, whether heretofore or now existing or hereafter arising, or which could, might, or may be claimed to exist, of whatever kind or nature, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully set forth herein at length, which in any way arise out of, or are connected with, or relate to, the condition of the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Gulf Properties Inc)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 EXCEPT FOR SELLER’S WARRANTIES, BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/ PMM BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. As a material inducement to the execution and delivery of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderClosing, Buyer does hereby acknowledgewill have examined and inspected the Purchased Assets, representincluding the Real Property, warrant and agree, to will know and be satisfied with the Seller that except as expressly provided physical condition, quality, quantity and state of repair of the Purchased Assets in Paragraph 13.1all 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 for any comparable local or state laws (collectively, the duration set forth in Paragraph 13.1
(i) Buyer is purchasing "ADA")); reviewed the Property in an "AS-IS" condition as of the date of the Close of Escrow with respect to any factsInformation and all instruments, circumstances, conditions records and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as documents which Buyer deems necessary appropriate or appropriate under the circumstancesadvisable to review in connection with this transaction; reviewed all applicable laws, ordinances, rules and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property; at its own cost and expense, made its own independent investigation respecting the Purchased Assets and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, including, without limitation, the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) Buyer, by reason proceeding with the Closing of all of the foregoingthis transaction, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. BUYER HEREBY ACKNOWLEDGES THAT THE PURCHASED ASSETS ARE PROPERTY USED FOR BUSINESS PURPOSES AND NOT RESIDENTIAL REAL PROPERTY AND AGREES THAT THE REAL PROPERTY IS EXEMPT FROM, whether heretofore or now existing or hereafter arisingAND THAT SELLER IS NOT REQUIRED TO PROVIDE, or which couldANY RESIDENTIAL PROPERTY DISCLOSURES WITH RESPECT TO THE REAL PROPERTY. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PURCHASED ASSETS, which in any way arise out ofINCLUDING WITHOUT LIMITATION THE REAL PROPERTY, or are connected withON AN "AS IS" AND "WHERE IS" BASIS, or relate toWITH ALL FAULTS, the condition of the PropertyAND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS. 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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PURCHASED ASSETS, INCLUDING WITHOUT LIMITATION THE REAL PROPERTY, AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PURCHASED ASSETS. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) BUYER IS TAKING THE REAL PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY SELLER THAT THE REAL PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE REAL PROPERTY, AND (C) BUYER TAKES THE REAL PROPERTY UNDER THIS AGREEMENT WITH THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES. BUYER IS, OR WILL BE AS OF THE CLOSING, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND/OR LEAD PAINT AND, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS OR LEAD PAINT CONDITION IN ACCORDANCE WITH APPLICABLE LAW.
Appears in 1 contract
AS-IS. As a material inducement The Company acknowledges that it has, prior to the execution date hereof, inspected the Properties, the physical and delivery of this Agreement by Seller environmental condition and the performance by Seller of its duties and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agree, to and with the Seller that except as expressly provided in Paragraph 13.1uses thereof, and for the duration set forth fixtures, equipment and personal property included in Paragraph 13.1
(i) Buyer is purchasing this contribution and acquisition to its satisfaction, and the Property Company has independently investigated, analyzed and appraised the value and profitability thereof, the creditworthiness of tenants, and the presence of hazardous materials, if any, in an "AS-IS" condition as or on the Properties, that they have received or had made available to them by Contributor, on or prior to the date hereof, copies of and/or has reviewed the Review Materials and other agreements and documents referred to or contemplated herein, that they are thoroughly acquainted with all of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, foregoing and that based upon samethe Company, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with entering into this Agreement, includingwill rely exclusively upon their own independent investigations, without limitationanalyses, the Report) as an inducement to Buyer to enter into this Escrow studies and thereafter to purchase the Property or for appraisals and not upon any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining information provided to the physical and financial condition Company by or on behalf of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties Contributor with respect to the condition of the Propertythereto. AT EACH CLOSING, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental ResponseTHE COMPANY AGREES TO ACCEPT THE PROPERTIES CONTRIBUTED OR SOLD TO THE COMPANY AND/OR THE SPE ENTITIES, Compensation and Liability ActAS APPLICABLE, as amended from time to timeAT SUCH CLOSING IN "AS IS, or similar laws. Buyer acknowledges and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of the PropertyWHERE IS" CONDITION, whether heretofore or now existing or hereafter arisingEXCEPT FOR CONTRIBUTOR'S REPRESENTATIONS, or which couldWARRANTIES OR COVENANTS EXPRESSLY CONTAINED IN THIS AGREEMENT, mightWITH ALL FAULTS AS OF THE DATE HEREOF AND SPECIFICALLY AND WITHOUT ANY WARRANTIES, or may be claimed to existREPRESENTATIONS OR GUARANTEES, of whatever kind or natureEITHER EXPRESS OR IMPLIED AS TO (I) THE CONDITION, whether known or unknownFITNESS FOR ANY PARTICULAR PURPOSE, suspected or unsuspectedOR MERCHANTABILITY OF SUCH PROPERTIES, liquidated or unliquidated(II) THE STRUCTURAL INTEGRITY OF SUCH PROPERTIES, each as though fully set forth herein at length(III) THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, which in any way arise out ofDATA, or are connected withMATERIALS OR CONCLUSIONS CONTAINED IN ANY INFORMATION PROVIDED TO THE COMPANY FROM ANY SOURCE WHATSOEVER, or relate toEXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, the condition of the Property(IV) ENVIRONMENTAL MATTERS PERTAINING TO SUCH PROPERTIES EXCEPT AS SET FORTH HEREIN, OR (V) ANY OTHER WARRANTY OF ANY KIND, NATURE OR TYPE WHATSOEVER FROM CONTRIBUTOR, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, REASONABLE WEAR AND TEAR AND DAMAGE BY FIRE OR OTHER CASUALTY (SUBJECT TO THE PROVISIONS OF SECTION 8.01) BETWEEN THE DATE HEREOF AND THE APPLICABLE CLOSING DATE EXCEPTED, AND THE COMPANY SHALL ASSUME (SUBJECT TO THE PROVISIONS HEREOF AND APPLICABLE LAW) THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY THE COMPANY'S INVESTIGATIONS.
Appears in 1 contract
Samples: Contribution Agreement (Reckson Operating Partnership Lp)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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"), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. ----------------------- BUYER'S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. As a material inducement BUYER EXPRESSLY ACKNOWLEDGES THAT THE PROPERTY IS BEING SOLD AND ACCEPTED "AS IS" AND "WITH ALL FAULTS" AND IS BEING ACCEPTED WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE DEED. BUYER ACKNOWLEDGES THAT IT HAS MADE SUCH INVESTIGATION OF THE CONDITION OF THE PROPERTY AND CONDUCTED DUE DILIGENCE AS BUYER DEEMED NECESSARY OR ADVISABLE AND IS RELYING SOLELY UPON ITS OWN INVESTIGATION OF SUCH CONDITION AND DUE DILIGENCE AND NOT UPON ANY STATEMENT OR OPINION BY SELLER OR ANY SELLER’S INDEMNIFIED PARTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR AS PROVIDED IN THE DEED, BUYER EXPRESSLY AGREES THAT NONE OF SELLER OR ANY SELLER’S INDEMNIFIED PARTY HAS MADE OR MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROPERTY. Without limiting the foregoing, by accepting the Deed and any other documents provided for herein and paying the Purchase Price, Buyer is thereby acknowledging that (a) it is familiar with the Property and has had full opportunity, to the execution and delivery of this Agreement by Seller and the performance by Seller of its duties and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agreeextent it desired to do so, to fully inspect and review (i) the environmental condition of the Property, (ii) the title to the Property, (iii) compliance of the Property with all applicable laws, and (iv) such other engineering, financial, and operational matters related to the Seller that Property, as Buyer has deemed appropriate; (b) Buyer is accepting the Property in "AS-IS, WHERE-IS" condition and state of repair, with all faults and without representation or warranty (except as expressly provided in Paragraph 13.1this Agreement); (c) Buyer is accepting and agrees to be liable for any and all environmental liabilities arising from, related to or associated with the Property whether such obligations and for liabilities arose, occurred or relate to the duration set forth in Paragraph 13.1
period prior to, on or after the Closing Date; and (d) Buyer is aware that the development of the Property will be impacted by the following factors: (i) Buyer is purchasing the Property is subject to easements for right of way and temporary construction granted to the Portland Bureau of Transportation (“PBOT”) in an "AS-IS" condition as connection with the rebuilding of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defectsNorth Xxxxxx Road; (ii) Seller has no obligation rail access to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for samethe Property will require PBOT approval of a railroad crossing across X. Xxxxxx Rd. from Buyer’s mainline to the Property; (iii) by the Close Property is subject to an Equitable Servitude and Easement granted to the Oregon Department of Escrow, Buyer shall have undertaken all such physical inspections Environmental Quality; (iv) the Property is in a designated flood hazard zone; (v) the Property is tree covered and examinations tree preservation is a land division criteria; (vi) areas of the Property have slopes in excess of twenty percent (20%) which may necessitate landslide mitigation as Buyer deems necessary or appropriate under the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel a condition of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this Agreement, including, without limitation, the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purposepartition; and (vvii) by reason any other factors that an inspection or environmental assessment would reveal and all matters of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition record (“Condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of the Property, whether heretofore or now existing or hereafter arising, or which could, might, or may be claimed to exist, of whatever kind or nature, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully set forth herein at length, which in any way arise out of, or are connected with, or relate to, the condition of the Property”).
Appears in 1 contract
Samples: Agreement of Sale
AS-IS. As a material inducement to of the execution and delivery of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderClosing Date, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the Close of Escrow with respect to any facts, circumstances, conditions “ADA”)) and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by consummating this transaction at the Close of Escrow, Buyer shall be deemed to have undertaken all such physical inspections and examinations of determined that the same is satisfactory to Buyer;
(b) reviewed the Property as Information and all instruments, records and documents which Buyer deems necessary appropriate or appropriate under the circumstancesadvisable 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 Real Property or the business conducted thereon, and Buyer, by consummating this transaction at the Close of Escrow, shall be deemed to have determined that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations the same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by consummating this transaction at the Close of Escrow, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitationby consummating this transaction at the Close of Escrow, the Report) as an inducement shall be deemed to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/ D. S. BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
AS-IS. As a material inducement to the execution and delivery of this Agreement by Seller and the performance by Seller of its duties and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agree, to and with the Seller that except (a) Except as is expressly provided in Paragraph 13.1, and for the duration set forth in Paragraph 13.1
(i) Buyer this Agreement to the contrary, SLGOP is purchasing expressly acquiring the Property in an "AS-AS IS, WHERE IS, AND WITH ALL FAULTS" condition as of the date hereof. Transferor has specifically bargained for the assumption by SLGOP of all responsibility to investigate the Property, Laws and Regulations, Facts, Space Leases and Service Contracts and of all risk of adverse conditions existing as of the Close date hereof and has structured the Consideration and other terms of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller this Agreement in consideration thereof. SLGOP has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations investigations of the Property Property, Laws and Regulations, Facts, Space Leases and Service Contracts as Buyer SLGOP deems necessary or appropriate under the circumstances, circumstances as to the current status of the Property and that based upon same, Buyer except as is expressly set forth in this Agreement to the contrary, SLGOP is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents own consultants, agents, legal counsel and officers.
(b) SLGOP EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER TRANSFEROR, NOR THE TRANSFEROR PARTIES NOR ANY PERSON ACTING ON BEHALF OF TRANSFEROR OR ANY TRANSFEROR PARTIES, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY SLGOP IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT, CONTRACTOR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (TRANSFEROR, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN SLGOP AND/OR ANY AFFILIATE THEREOF)) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE "EXCULPATED PARTIES") HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE PROPERTY, THE PERMITTED USE OF THE PROPERTY OR THE ZONING AND OTHER LAWS AND REGULATIONS APPLICABLE THERETO OR THE COMPLIANCE BY THE PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE PROPERTY, THE EXISTING MORTGAGE INDEBTEDNESS, THE EXISTING MEZZANINE INDEBTEDNESS, OR OTHERWISE RELATING TO THE PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. SLGOP FURTHER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, ALL MATERIALS THAT HAVE BEEN PROVIDED BY ANY OF THE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR SUITABILITY FOR ANY PURPOSE OR ACCURACY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SLGOP SHALL NOT HAVE ANY RECOURSE AGAINST TRANSFEROR OR ANY OF THE OTHER EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EXCEPT AS EXRESSLY SET FORTH IN THIS AGREEMENT, SLGOP IS ACQUIRING THE PROPERTY BASED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY TRANSFEROR, OR ANY OF THE OTHER EXCULPATED PARTIES.
5.2 Except as is expressly set forth in this Agreement to the contrary, Transferor hereby disclaims all warranties of any kind or nature whatsoever (including warranties of habitability and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration fitness for the Propertyparticular purposes), (iv) Seller is not making and has not made any warranty whether expressed or representation implied, including, without limitation, warranties with respect to all the Property. Notwithstanding anything to the contrary contained herein, this Article 5 does not limit or affect in any way any indemnification provision contained in this Agreement.
5.3 Except as expressly set forth in this Agreement to the contrary, Transferor makes no warranty with respect to the presence of Hazardous Materials (as hereinafter defined) within the Property. The term "Hazardous Materials" shall mean (a) those substances included within the definitions of any one or more of the terms "hazardous materials", "hazardous wastes", "hazardous substances", "industrial wastes", and "toxic pollutants", as such terms are defined under the Environmental Laws, or any part of them, (b) petroleum and petroleum products, including, without limitation, crude oil and any fractions thereof, (c) natural gas, synthetic gas and any mixtures thereof, (d) asbestos and or any material which contains any hydrated mineral silicate, including, without limitation, chrysotile, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether friable or non-friable, (e) polychlorinated biphenyl ("PCBs") or PCB-containing materials or fluids, (f) radon, urea formaldehyde, lead, lead in drinking water or lead based paint, (g) any pathogen, toxin or other biological agent or condition including, without limitation, any fungus, mold, mycotoxin or microbial matter naturally occurring or otherwise, (h) any other hazardous or radioactive substance, material, pollutant, contaminant or waste, and (i) any other substance with respect to which any Environmental Law or governmental authority requires environmental investigation, monitoring or remediation. The term "Environmental Laws" shall mean all federal, state and local laws, statutes, guidelines, codes, ordinances, regulations, now or hereafter in effect, in each case as amended or supplemented from time to time, including, without limitation, all applicable judicial or administrative orders, applicable consent decrees and binding judgments relating to the Property regulation and protection of human health, safety, the environment and natural resources (including, but not limited towithout limitation, any matters contained in documents made available ambient air, surface, water, groundwater, wetlands, land surface or delivered to Buyer in connection with this Agreementsubsurface strata, wildlife, aquatic species and vegetation), including, without limitation, the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. §§ 9601 et seq.), the Hazardous Material Transportation Act, as amended from time to time(49 U.S.C. §§ 1801 et seq.), or similar laws. Buyer acknowledges the Federal Insecticide, Fungicide, and agrees that Rodenticide Act, as amended (7 U.S.C. §§ 136 et seq.), the foregoing waiver Resource Conservation and release includes all rights Recovery Act, as amended (42 U.S. §§ 6901 et seq.), the Toxic Substance Control Act, as amended (42 U.S.C. §§ 7401 et seq.), the Clean Air Act, as amended (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251 et seq.), the Occupational Safety and claims of Buyer against Seller Health Act, as amended (29 U.S.C. §§ 651 et seq.), the Safe Drinking Water Act, as amended (42 U.S.C. §§ 300f et seq.), Environmental Protection Agency regulations pertaining to Asbestos (including, without limitation, 40 C.F.R. part 61, Subpart M, the condition United States Environmental Protection Agency Guidelines on Mold Remediation in Schools and Commercial Buildings, the United States Occupational Safety and Health Administration regulations pertaining to Asbestos (including, without limitation, 29 C.F.R. Sections 1910.1001 and 1926.58), applicable New York State and New York City statutes and the rules and regulations promulgated pursuant thereto regulating the storage, use and disposal of Hazardous Materials, the New York City Department of Health Guidelines on Assessment and Remediation of Fungi in Indoor Environments and any state or local counterpart or equivalent of any of the Propertyfederal statutes, whether heretofore or now existing or hereafter arising, or which could, might, or may be claimed to exist, of whatever kind or nature, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully rules and regulations set forth herein at lengthabove, which in and any way arise out offederal, state or are connected with, local transfer of ownership notification or relate to, the condition of the Propertyapproval statutes.
Appears in 1 contract
Samples: Contribution and Purchase and Sale Agreement (Sl Green Realty Corp)
AS-IS. As a material inducement Notwithstanding anything to the execution and delivery of contrary contained in this Agreement by Seller and the performance by Seller of its duties and obligations hereunderAgreement, Buyer does hereby acknowledgeacknowledges and agrees that, represent, warrant and agree, to and with the Seller that except as otherwise expressly provided in Paragraph 13.1, and for the duration set forth in Paragraph 13.1
this Agreement or the Closing Documents, (i) Buyer is purchasing the Property in an "AS-IS" condition subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for matters concerning the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this Agreement, including, without limitation, the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, the size (including without limitation rentable or usable square footage) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer under hereunder nor shall the State Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or Federal Comprehensive Environmental Responsephysical condition of the Property or any aspect or portion thereof, Compensation including access, sewage, soils, geology and Liability Act, as amended from time to timegroundwater, or similar whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that the foregoing waiver and release includes all rights and claims Buyer is not relying on any representation or warranty of Buyer against Seller pertaining to the condition of the Propertyor any Seller Released Parties, whether heretofore implied, presumed or now existing expressly provided at law or hereafter arisingotherwise, arising by virtue of any statute, common law or which could, might, or may be claimed to exist, other legally binding right (other than this Agreement) nor remedy in favor of whatever kind or nature, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully set forth herein at length, which in any way arise out of, or are connected with, or relate to, the condition of the Property.Buyer. Buyer’s Initials: __DD____
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS EXECUTED IN CONNECTION WITH THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/MW BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/ GRS BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (Republic Property Trust)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/RW BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 XXXXX HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, XXXXX 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 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 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 INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. XXXXX 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/ BAK BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Growth & Income REIT, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the Close Due Diligence Period shall be deemed to have determined that the same is satisfactory to Borrower;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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"), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. WLO -------------------- BUYER'S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and any documentation relating to the Interests, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Interests and/or the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; provided, however, the foregoing shall not be deemed to relieve Seller of its continuing covenants and obligations in this Agreement between the Effective Date and the Close of Escrow with respect to the Property (including, without limitation, with respect to title), nor shall the Report) as an inducement foregoing in any way impair Buyer’s ability to Buyer to enter into rely on Seller’s representations and warranties set forth in this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties Agreement with respect to the condition purchase of the PropertyInterests from Seller. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental ResponseAND EXCEPT FOR SELLER’S COVENANTS AND OBLIGATIONS EXPRESSLY STATED IN THIS AGREEMENT AND SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY EXECUTED DOCUMENT DELIVERED BY SELLER TO BUYER AT THE CLOSE OF ESCROW (“SELLER’S COVENANTS AND WARRANTIES”), Compensation and Liability ActTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, as amended from time to timeCOVENANT, or similar lawsOR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) BY SELLER. Buyer acknowledges and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of the PropertyAS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, whether heretofore or now existing or hereafter arisingBUYER AGREES TO ACCEPT THE INTERESTS AND THE PROPERTY OWNERS’ INTEREST IN THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, or which couldWITH ALL FAULTS, mightAND WITHOUT ANY REPRESENTATION OR WARRANTY, or may be claimed to existALL OF WHICH SELLER HEREBY DISCLAIMS, of whatever kind or natureEXCEPT FOR SELLER’S COVENANTS AND WARRANTIES. EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, whether known or unknownNO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, suspected or unsuspectedMERCHANTABILITY, liquidated or unliquidatedDESIGN, each as though fully set forth herein at lengthQUALITY, which in any way arise out ofCONDITION, or are connected withOPERATION OR INCOME, or relate toCOMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, the condition of the PropertyABSENCE 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). EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE PROPERTY OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE INTERESTS, THE PROPERTY OWNERS OR THE ENTITY DOCUMENTS. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER IS TAKING THE INTERESTS AND THE PROPERTY OWNERS’ INTEREST IN THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER TAKES THE INTERESTS AND THE PROPERTY OWNERS’ INTERESTS IN THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES). WITH RESPECT TO THE FOLLOWING, AND EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER NOR THE PROPERTY OWNERS SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT NEITHER SELLER NOR THE PROPERTY OWNERS HAVE MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO:
1. THE 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 ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS OR 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 INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS AND THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 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.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Escrow Seller contained herein;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with respect 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 any factsthe Real Property or the business conducted thereon, circumstancesand Buyer, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by proceeding with this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officers, and evidenced thereby are satisfactory to Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect subject to all or any part representations, warranties, covenants and agreements of the Property Seller contained herein;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, any matters contained in documents made available those relating to building, zoning and land use) affecting the development, use, occupancy or delivered enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in connection with entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein. In addition, and notwithstanding anything to the contrary set forth in this Agreement or in the Deed at the time the Deed is recorded (including, without limitation, any express or implied covenants set forth therein), Seller is transferring the Report) as an inducement Property to Buyer subject to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all of the foregoingPermitted Exceptions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Buyer AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED AND ANY OTHER DOCUMENTS DELIVERED AT THE CLOSE OF ESCROW AND ANY COVENANTS OR OBLIGATIONS EXPRESSLY UNDERTAKEN BY SELLER HEREUNDER (“SELLER’S WARRANTIES”), THIS 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) BY SELLER. 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, 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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE 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 IN EACH CASE, OTHER THAN THE SELLER’S WARRANTIES, IF ANY:
1. THE 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. /s/ RJH BUYER’S INITIALS Notwithstanding anything contained herein to the contrary, Seller shall assume not be released or discharged from any liability to the full risk extent the same arises out of (i) a breach of a representation or warranty made by Seller under this Agreement that by the express terms of this Agreement survive the Closing, (ii) Seller’s fraud, (iii) Seller’s breach of any loss provision of this Agreement that by the express terms of this Agreement survives Closing, or damage occasioned by any fact, circumstance, condition or defect pertaining (iv) to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic extent first arising prior to (or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect relating to the condition of period prior to) the PropertyClosing Date, including without limitation any rights of Buyer under claim by a third party for personal injury at the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees Property that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining was incurred prior to the condition Closing Date. The provisions of this Section 11.2 shall survive the Property, whether heretofore Closing or now existing or hereafter arising, or which could, might, or may be claimed to exist, the earlier termination of whatever kind or nature, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as though fully set forth herein at length, which in any way arise out of, or are connected with, or relate to, the condition of the Propertythis Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
AS-IS. As a material inducement If this Agreement is not terminated pursuant to the execution terms of Section 4.3.2 hereof, except for the Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have:
(a) examined and delivery of this Agreement by Seller inspected the Property and the performance by Seller of its duties Defeasance Security and obligations hereunder, Buyer does hereby acknowledge, represent, warrant Company shall be deemed to know and agree, to and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing the Property in an "AS-IS" condition as state of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, Defeasance Security in all respects (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this Agreement, including, without limitation, the Reportcompliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”);
(b) as an inducement reviewed the Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to Buyer review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to enter into this Escrow the Interests, any and thereafter all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to purchase the Real Property or for any other purposethe business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and (v) by reason of all of the foregoingexpense, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of made its own independent investigation respecting the Property, including without limitation the presence Defeasance Security, the Interests and all other aspects of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Propertythis transaction, and Buyer hereby expressly shall have relied thereon and unconditionally waives and releases Seller and all on the advice of its parents, subsidiaries, affiliates and partnershipsconsultants in entering into this Agreement, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect Company shall be deemed to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyCompany. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthCOMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE 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 ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ BH COMPANY’S INITIALS
Appears in 1 contract
Samples: Agreement for Sale of Membership Interests (Gramercy Capital Corp)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(a) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND 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"), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthBUYER AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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 OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. BUYER'S INITIALS: _____________
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. As a material inducement If this Agreement is not terminated pursuant to the execution terms of Section 4.3.2 hereof, except for the Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have:
(a) examined and delivery of this Agreement by Seller inspected the Property and the performance by Seller of its duties Defeasance Security and obligations hereunder, Buyer does hereby acknowledge, represent, warrant Company shall be deemed to know and agree, to and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing the Property in an "AS-IS" condition as state of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, Defeasance Security in all respects (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this Agreement, including, without limitation, the Reportcompliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”);
(b) as an inducement reviewed the Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to Buyer review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to enter into this Escrow the Interests, any and thereafter all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to purchase the Real Property or for any other purposethe business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and (v) by reason of all of the foregoingexpense, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining to the physical and financial condition of made its own independent investigation respecting the Property, including without limitation the presence Defeasance Security, the Interests and all other aspects of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Propertythis transaction, and Buyer hereby expressly shall have relied thereon and unconditionally waives and releases Seller and all on the advice of its parents, subsidiaries, affiliates and partnershipsconsultants in entering into this Agreement, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect Company shall be deemed to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyCompany. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), or which couldTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, mightCOVENANT, or may be claimed to existOR WARRANTY OF ANY KIND (WHETHER EXPRESS, of whatever kind or natureIMPLIED, whether known or unknownOR, suspected or unsuspectedTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, liquidated or unliquidatedSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, each as though fully set forth herein at lengthCOMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, which in any way arise out ofWITH ALL FAULTS, or are connected withAND WITHOUT ANY REPRESENTATION OR WARRANTY, or relate toALL OF WHICH SELLER HEREBY DISCLAIMS, the condition of the Property.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). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE 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 ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Samples: Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.)
AS-IS. As a material inducement to of the execution and delivery expiration of this Agreement by Seller and the performance by Seller of its duties and obligations hereunderDue Diligence Period, Buyer does hereby acknowledge, represent, warrant will have:
(A) examined and agree, to inspected the Property and will know and be satisfied with the Seller that except as expressly provided in Paragraph 13.1physical condition, quality, quantity and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing state of repair of the Property in an "AS-IS" condition as all respects (including, without limitation, the compliance of the date Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Close Due Diligence Period 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 advisable to review in connection with this transaction, including, but not by way of Escrow limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by this transaction following the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations expiration of the Property as Buyer deems necessary or appropriate under Due Diligence Period, shall be deemed to have determined that the circumstances, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations same and the advice information and counsel of its agents data contained therein and officersevidenced thereby are satisfactory to Buyer;
(C) reviewed all applicable laws, ordinances, rules and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property governmental regulations (including, but not limited to, any matters contained those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(D) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in documents made available or delivered to Buyer in connection with entering into this Agreement, includingand Buyer, without limitation, by proceeding with this transaction following the Report) as an inducement to Buyer to enter into this Escrow and thereafter to purchase the Property or for any other purpose; and (v) by reason of all expiration of the foregoingDue Diligence Period, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining be deemed to the physical and financial condition of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Property, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges and agrees have determined that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining same are satisfactory to the condition of the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, whether heretofore or now existing or hereafter arisingAND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, or which couldINCLUDING, mightBUT NOT LIMITED TO, or may be claimed to existIN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW OR IN ANY OTHER DOCUMENTS DELIVERED BY SELLER AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), of whatever kind or natureTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, whether known or unknownCOVENANT, suspected or unsuspectedOR WARRANTY OF ANY KIND (WHETHER EXPRESS, liquidated or unliquidatedIMPLIED, each as though fully set forth herein at lengthOR, which in any way arise out ofTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, or are connected withSTATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, or relate toBUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, the condition of the Property.WITH ALL FAULTS, 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 THE SELLER’S WARRANTIES AND ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES) MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES OR IN ANY OTHER DOCUMENTS DELIVERED BY SELLER AT THE CLOSE OF ESCROW). WITH RESPECT TO THE 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 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 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 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 USE. THE PROVISIONS OF THIS SECTION 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. BUYER’S INITIALS
Appears in 1 contract
Samples: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
AS-IS. As a material inducement The Company acknowledges that it has, prior to the execution date hereof, inspected the Properties, the physical and delivery of this Agreement by Seller environmental condition and the performance by Seller of its duties and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agree, to and with the Seller that except as expressly provided in Paragraph 13.1uses thereof, and for the duration set forth fixtures, equipment and personal property included in Paragraph 13.1
(i) Buyer is purchasing this sale and acquisition to its satisfaction, and the Property Company has independently investigated, analyzed and appraised the value and profitability thereof, the creditworthiness of tenants, and the presence of hazardous materials, if any, in an "AS-IS" condition as or on the Properties, that they have received or had made available to them by Seller, on or prior to the date hereof, copies of and/or has reviewed the Review Materials and other agreements and documents referred to or contemplated herein, that they are thoroughly acquainted with all of the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate under the circumstances, foregoing and that based upon samethe Company, Buyer is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with entering into this Agreement, includingwill rely exclusively upon their own independent investigations, without limitationanalyses, the Report) as an inducement to Buyer to enter into this Escrow studies and thereafter to purchase the Property or for appraisals and not upon any other purpose; and (v) by reason of all of the foregoing, Buyer shall assume the full risk of any loss or damage occasioned by any fact, circumstance, condition or defect pertaining information provided to the physical and financial condition Company by or on behalf of the Property, including without limitation the presence of any asbestos containing material, hazardous toxic or radioactive waste, substance or materials in, on, under or about the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successors, heirs and assigns and each of them (individually and collectively, the "Released Parties") from any and all rights and claims against Seller and/or the Released Parties with respect to the condition of the Propertythereto. AT THE CLOSING, including without limitation any rights of Buyer under the State or Federal Comprehensive Environmental ResponseTHE COMPANY AGREES TO ACCEPT THE PROPERTIES SOLD TO THE COMPANY AND/OR THE SPE ENTITIES, Compensation and Liability ActAS APPLICABLE, as amended from time to timeAT SUCH CLOSING IN "AS IS, or similar laws. Buyer acknowledges and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of the PropertyWHERE IS" CONDITION, whether heretofore or now existing or hereafter arisingEXCEPT FOR SELLER'S REPRESENTATIONS, or which couldWARRANTIES OR COVENANTS EXPRESSLY CONTAINED IN THIS AGREEMENT, mightWITH ALL FAULTS AS OF THE DATE HEREOF AND SPECIFICALLY AND WITHOUT ANY WARRANTIES, or may be claimed to existREPRESENTATIONS OR GUARANTEES, of whatever kind or natureEITHER EXPRESS OR IMPLIED AS TO (I) THE CONDITION, whether known or unknownFITNESS FOR ANY PARTICULAR PURPOSE, suspected or unsuspectedOR MERCHANTABILITY OF SUCH PROPERTIES, liquidated or unliquidated(II) THE STRUCTURAL INTEGRITY OF SUCH PROPERTIES, each as though fully set forth herein at length(III) THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, which in any way arise out ofDATA, or are connected withMATERIALS OR CONCLUSIONS CONTAINED IN ANY INFORMATION PROVIDED TO THE COMPANY FROM ANY SOURCE WHATSOEVER, or relate toEXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, the condition of the Property(IV) ENVIRONMENTAL MATTERS PERTAINING TO SUCH PROPERTIES EXCEPT AS SET FORTH HEREIN, OR (V) ANY OTHER WARRANTY OF ANY KIND, NATURE OR TYPE WHATSOEVER FROM SELLER, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, REASONABLE WEAR AND TEAR AND DAMAGE BY FIRE OR OTHER CASUALTY (SUBJECT TO THE PROVISIONS OF SECTION 8.01) BETWEEN THE DATE HEREOF AND THE CLOSING DATE EXCEPTED, AND THE COMPANY SHALL ASSUME (SUBJECT TO THE PROVISIONS HEREOF AND APPLICABLE LAW) THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT HAVE BEEN REVEALED BY THE COMPANY'S INVESTIGATIONS.
Appears in 1 contract
AS-IS. As a material inducement (a) Assignee hereby agrees to accept the execution and delivery of this Agreement by Seller Assignment and the performance by Seller of its duties Assignment and obligations hereunder, Buyer does hereby acknowledge, represent, warrant and agree, to and with the Seller that except as expressly provided in Paragraph 13.1Assumption Agreement from Assignor, and for the duration set forth in Paragraph 13.1
(i) Buyer is purchasing hereby acknowledges and agrees that the Property in an "AS-IS" condition as of and the Shares shall, on the date of the Close of Escrow with respect to any facts, circumstances, conditions and defects; ii) Seller has no obligation to repair or correct any such facts, circumstances, conditions or defects or compensate Buyer for same; (iii) by the Close of Escrow, Buyer shall have undertaken all such physical inspections and examinations of the Property as Buyer deems necessary or appropriate closing under the circumstancesPurchase Contract, be in their “as-is, where-is” condition on the date hereof, subject to use, wear, tear and natural deterioration, and that based upon same, Buyer is and will be relying strictly and solely upon such inspections and examinations and other matters as are set forth in the advice and counsel of its agents and officers, and Buyer is and will be fully satisfied that the purchase price is fair and adequate consideration for the Property, (iv) Seller is not making and has not made any warranty or representation with respect to all or any part of the Property (including, but not limited to, any matters contained in documents made available or delivered to Buyer in connection with this AgreementPurchase Contract, including, without limitation, the Reportconstruction of the Landlord’s Work (as defined in the Purchase Contract), between the date hereof and the Closing Date and all Group Entities Liabilities (as defined in the Purchase Contract). Furthermore, Assignee acknowledges that it shall accept the assignment of the Shares in strict accordance with the Purchase Contract.
(b) Assignee acknowledges that it has investigated, and is satisfied with, the Shares and the Group Entities (as an inducement to Buyer to enter into this Escrow and thereafter to purchase defined in the Purchase Contract), the Property and the physical condition thereof, including expenses and operations and environmental matters, and all other matter or for any other purpose; things affecting or relating to the Shares, the Group Entities and (v) by reason of all the Property, and that Assignee is fully familiar with the Shares, the Group Entities and the Property. Assignee acknowledges that it has received copies of the foregoingSpring Lease (as defined in the Purchase Contract) and the Declaration and is fully familiar with the Spring Lease and the Declaration. Assignee acknowledges and agrees that the Property shall, Buyer shall assume on the full risk date of any loss or damage occasioned by any factthe closing under the Purchase Contract, circumstancebe in its “as-is, where-is” condition or defect pertaining as of such closing, including without limitation, all environmental conditions and all latent and patent defects, and subject to all ongoing construction. Assignee expressly acknowledges that it is fully familiar with the physical condition of the Property as of the date hereof, Assignee hereby accepts the condition of the Property with all personalty, fixtures, trash, and debris, if any, and Assignee further expressly acknowledges that Assignor has no obligation whatsoever with respect to the physical delivery of the Property at Closing or the condition thereof and financial condition of that Assignor has no obligation whatsoever to do any work in connection with the Property, including without limitation limitation, the presence of any asbestos containing materialLandlord’s Work. Neither Assignor, hazardous toxic or radioactive waste, substance or materials in, on, under or about nor the Property, and Buyer hereby expressly and unconditionally waives and releases Seller and all of its parents, subsidiaries, affiliates and partnerships, and its and their respective officers, directors, shareholders, partners, agents and employees, and their respective successorsagents, heirs and assigns and each representatives, accountants or attorneys of them (individually and collectivelyAssignor, the "Released Parties") from have made any and all rights and claims against Seller and/or the Released Parties verbal or written representations or warranties whatsoever with respect to the Property, or the physical condition or operation of the Property, including without limitation or any rights of Buyer under building systems thereof or personal property therein, the State or Federal Comprehensive Environmental Response, Compensation revenues and Liability Act, as amended from time to time, or similar laws. Buyer acknowledges expenses generated by and agrees that the foregoing waiver and release includes all rights and claims of Buyer against Seller pertaining to the condition of associated with the Property, whether heretofore the zoning, building and other laws, regulations and rules applicable thereto or now existing the compliance by the Property therewith. Except for the express representations and warranties of Assignor contained herein, Assignee has not and will not rely on any representations or hereafter arisingwarranties made by Assignor, and Assignee acknowledges that no such representations or which couldwarranties have been made by Assignor.
(c) OTHER THAN AS EXPRESSLY SET FORTH HEREIN, mightIT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ASSIGNOR IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, or may be claimed to existEXPRESSED OR IMPLIED, of whatever kind or natureWITH RESPECT TO THE SHARES, whether known or unknownTHE GROUP ENTITIES AND THE PROPERTY, suspected or unsuspectedINCLUDING, liquidated or unliquidatedBUT NOT LIMITED TO, each as though fully set forth herein at lengthANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY, which in any way arise out ofMERCHANTABILITY, or are connected withFITNESS FOR A PARTICULAR PURPOSE, or relate toTITLE, the condition of the PropertyZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITIONS, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE SHARES, THE GROUP ENTITIES AND THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF THE SPRING LEASE, THE DECLARATION OR ANY OTHER INFORMATION PROVIDED BY OR ON BEHALF OF ASSIGNOR TO ASSIGNEE, OR ANY OTHER MATTER OR THING REGARDING THE SHARES, THE GROUP ENTITIES AND THE PROPERTY. ASSIGNEE ACKNOWLEDGES AND AGREES THAT UPON CLOSING UNDER THE PURCHASE CONTRACT, THE SHARES AND THE PROPERTY SHALL BE “AS IS”, “WHERE IS”, WITH “ALL FAULTS”. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, ASSIGNEE HAS NOT RELIED AND WILL NOT RELY ON, AND ASSIGNOR IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE SHARES, THE GROUP ENTITIES OR THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY ASSIGNOR OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT ASSIGNOR, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. SUBJECT TO THE PROVISIONS OF SECTIONS 4(a) AND (b) ABOVE, ASSIGNEE REPRESENTS TO ASSIGNOR THAT ASSIGNEE HAS CONDUCTED SUCH INVESTIGATIONS OF THE SHARES, THE GROUP ENTITIES AND THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS ASSIGNEE DEEMS NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE SHARES, THE GROUP ENTITIES AND THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF ASSIGNOR OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO. UPON CLOSING, ASSIGNEE SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY ASSIGNEE’S INVESTIGATIONS, AND ASSIGNEE, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED AND RELINQUISHED AS AGAINST ASSIGNOR (AND ASSIGNOR’S OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PRINCIPALS, EMPLOYEES AND AGENTS) ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH ASSIGNEE MIGHT HAVE ASSERTED OR ALLEGED AGAINST ASSIGNOR (AND ASSIGNOR’S OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, PRINCIPALS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL, ZONING OR BUILDING LAWS) OR UNDER THE DECLARATION AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE SHARES, THE GROUP ENTITIES OR THE PROPERTY.
Appears in 1 contract
Samples: Assignment Agreement (American Realty Capital New York Recovery Reit Inc)