AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely. 3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer. 3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.), Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
AS-IS. The As of Buyer’s exercise of the Option in accordance with the terms and conditions of this Section 3.4 shall survive Closing indefinitely.1.2 hereof, Buyer will have:
3.4.1 Buyer represents that it is a sophisticated real estate investor (a) examined and owner of real property and will conduct its own due diligence and investigations regarding inspected the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents will know and acknowledges that this Agreement provides Buyer be satisfied with sufficient time the physical condition, quality, quantity and opportunity to complete the Physical Inspections and Other Investigations state of the Property, to review the Property Materials and to conduct any related due diligence repair of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any contamination incomparable local or state laws (collectively, onthe “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, under records and documents which Buyer deems appropriate or adjacent advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Real Property or the accuracy business conducted thereon, and Buyer, by proceeding with this transaction following the expiration of any floor plansthe Due Diligence Period, square footage estimates, drawings, renderings or lease abstracts, 9shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with reviewed all applicable statutes, laws, codes, ordinances, rules and governmental regulations or requirements relating to the use(including, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to, those relating to building, zoning and land use) affecting the ADAdevelopment, OSHAuse, occupancy or enjoyment of the Subdivision Map ActReal Property, and Buyer, by proceeding with this transaction following the Toxic Substances Control Actexpiration of the Due Diligence Period, shall be deemed to have determined that the Comprehensive Environmental Responsesame are satisfactory to Buyer; and
(d) at its own cost and expense, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the right to use adjoining property or rights advice of wayits consultants in entering into this Agreement, 13) and Buyer, by proceeding with this transaction following the possibility of conversion expiration of the Property Due Diligence Period, shall be deemed to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees have determined that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity same are satisfactory to complete its review of the State of Title to the PropertyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, and thatAND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), except for Seller representations and warranties expressly set forth in Section 3.1 hereofTHIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, Seller makes no representation or warranty of any kind or nature whatsoeverCOVENANT, either express or impliedOR WARRANTY OF ANY KIND (WHETHER EXPRESS, regarding the accuracy or completeness of the Property MaterialsIMPLIED, the Title Report or the SurveyOR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT THE PROPERTY ON AN “AS IS, ” AND “WHERE IS” BASIS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer.
3.4.2 BUYER, FOR ITSELF, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS SUCCESSORS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND ASSIGNS LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY OTHER PARTY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER BUYEROR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY WAIVESAGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH BUYER IS TAKING THE PROPERTY OR “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTSPROPERTY IS FIT FOR A PARTICULAR PURPOSE, (IIB) EXCEPT FOR SELLER’S FRAUDWARRANTIES, 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 (III) SELLER'S INDEMNITIES IN FAVOR EXCEPT FOR THE LIMITED WARRANTIES OF BUYER TITLE SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTSDEED AND SELLER’S WARRANTIES). WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERSFOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE RELEASED PARTIES ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER THAN INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S INTENDED TO BE A THIRD-PARTY BENEFICIARY USE. THE PROVISIONS OF THIS SECTION 3.4.2. NOTHING IN 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS SECTION 3.4.2 AGREEMENT AND SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO NOT BE MERGED INTO THE CLOSING DATEDOCUMENTS EXECUTED AT CLOSE OF ESCROW.
Appears in 1 contract
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary Representatives to the extent it so desires shall have examined and appropriate for inspected the Purchased Assets prior to the execution of this Agreement, and subject to the provisions of this Article and Article 4, Buyer agrees to fully and completely evaluate accept the physical, environmental and economic Purchased Assets in an “AS IS” condition as of the Property and the Property's suitability for Buyer’s intended useClosing, except as provided in Article 4 hereof. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth as provided in Section 3.1 of this Agreement and the Seller Closing DocumentsArticle 4 hereof, Buyer is not relying upon any representations, statements, or warranties or statements of any kind or nature whatsoever, whether (oral or written, express implied or impliedexpress) of any officer, that Selleremployee, any direct agent or indirect constituent partner, member or shareholder Representative of Seller, or any officersalesperson or broker (if any) involved in this transaction as to the Purchased Assets, directorincluding, shareholderbut not limited to: (a) any representation, employeestatements or warranties as to the physical condition of the Purchased Assets, agent, representative, broker, servant, successor, assign, affiliate or subsidiary including implied warranties of any of them, or merchantability and fitness for a particular purpose and any other person warranties provided or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible implied by applicable Law; (collectively, b) the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability fitness and/or suitability of the Property"): 1) the contentsPurchased Assets for use as a resort, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3hotel and/or casino; (c) the financial performance or the economic prospects of the Property, 4Purchased Assets; (d) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability compliance of the PropertyPurchased Assets with applicable building, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended usezoning, 6) the environmental condition of the Property (includingsubdivision, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systemsenvironmental, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, lawsland use Laws, codes, ordinances, regulations rules or requirements regulations; (e) the state of repair of the Purchased Assets; (f) the value of the Purchased Assets; (g) the manner or quality of construction of the Purchased Assets; (h) the income derived or to be derived from the Purchased Assets; or (i) the fact that the Purchased Assets may be located in hurricane zones, on earthquake faults or in seismic hazardous zones. Subject to the foregoing sentence, Buyer, for itself and its successors and assigns, waives any right to assert any claim against Seller, at Law or in equity, relating to the useany such matter, operationwhether latent or patent, leasingdisclosed or undisclosed, zoningknown or unknown, subdivisionin contract or tort, planning, building, fire, safety, health now existing or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerhereafter arising.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Asset Purchase Agreement (Trump Entertainment Resorts, Inc.)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents acknowledges that it is a sophisticated real estate investor familiar with each of the Properties and owner has had the opportunity, directly or through its representatives to inspect each of real property the Properties and will conduct its own due diligence and investigations regarding activities. Without limitation of the Property and Buyer’s intended uses thereof as provided for in this Agreement. foregoing, Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity the Purchase Price has been negotiated based on Buyer's express agreement that there would be no contingencies (financial or otherwise) to complete Closing other than the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which conditions set forth in Article IX hereof. Buyer or its consultants Representatives shall have fully examined and inspected the Properties prior to the execution of this Agreement, and subject to the provisions of this Article XII and each Seller's representations, warranties and covenants expressly set forth herein or agents deem necessary any certificate, instrument or agreement delivered pursuant hereto and appropriate for subject to the conditions set forth herein, Buyer agrees to fully and completely evaluate accept the physical, environmental and economic Properties in an "AS IS" condition as of the Property and the Property's suitability for Buyer’s intended useClosing. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth as provided in Section 3.1 of this Agreement and the Seller Closing Documentsor any certificate, instrument or agreement delivered pursuant to this Agreement, Buyer is not relying upon any representations, statements, or warranties or statements of any kind or nature whatsoever, whether (oral or written, express implied or impliedexpress) of any officer, that Selleremployee, agent or Representative of any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate salesperson or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible broker (collectively, the "Released Parties"), may have made with respect if any) involved in this transaction as to the following Properties, including, but not limited to: (collectivelya) any representation, statements or warranties as to the "Condition and Suitability physical condition of the Property"): 1Properties, (b) the contents, accuracy and completeness fitness and/or suitability of the Property MaterialsProperties for use as a hotel and casino, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3(c) the financial performance or the economic prospects of the PropertyProperties, 4(d) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability compliance of the PropertyProperties with applicable building, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended usezoning, 6) the environmental condition of the Property (includingsubdivision, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systemsenvironmental, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, lawsland use Laws, codes, ordinances, regulations rules or requirements regulations, (e) the state of repair of the Properties, (f) the value of the Properties, (g) the manner or quality of construction of the Properties, (h) the income derived or to be derived from the Properties, or (i) the fact that the Properties may be located on earthquake faults or in seismic hazardous zones. Other than in accordance with Article XI hereof, Buyer, for itself and its successors and assigns, waives any right to assert any claim against any Seller, at Law or in equity, relating to the useany such matter, operationwhether latent or patent, leasingdisclosed or undisclosed, zoningknown or unknown, subdivisionin contract or tort, planning, building, fire, safety, health now existing or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerhereafter arising.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Asset Purchase Agreement (Caesars Entertainment Inc)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding Notwithstanding anything to the Property and Buyer’s intended uses thereof as provided for contrary contained in this Agreement. Buyer further represents , but subject to Seller’s Representations and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly Warranties set forth in Section 3.1 of this Agreement and in the documents to be executed by Seller at Closing (the "Closing Documents"), Buyer is not relying upon Purchaser shall acquire the Property from Seller at Closing in its then “as-is, where is” condition, without any representations, other representations or warranties or statements of any kind or nature whatsoever, whether oral or writtenfrom Seller, express or implied, including any warranty of merchantability, habitability or fitness for a particular purpose. Purchaser agrees that, except to the limited extent provided in this Agreement and subject to Seller’s Representations and Warranties set forth in this Agreement and in the Closing Documents, Seller has no obligation to make repairs, replacements or improvements or to remedy any faults, defects, or other adverse conditions described in any report or other material obtained by Purchaser or delivered by Seller to Purchaser, including the remediation of any Hazardous Materials on the Property. Purchaser will not rely upon any oral statements made by any representatives or agents of Seller.
A. Without limiting the generality of the foregoing, Purchaser acknowledges and agrees that except as specifically provided herein and subject to Seller’s Representations and Warranties set forth in this Agreement and in the Closing Documents, Seller has not made, and will not make, and specifically negates and disclaims, any direct past, present or indirect constituent partnerfuture representation, member or shareholder of Sellerwarranty, promise, covenant, agreement, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary guaranty of any of themkind or character whatsoever, whether express or any other person implied, oral or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectivelywritten, the "Released Parties"), may have made with respect to to: (i) the following Property; (collectively, ii) the "Condition and Suitability square footage of the Property"): 1Land or Improvements; (iii) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness value of the Property or any portion thereof for any particular purpose the income to be derived therefrom; (iv) the construction, physical condition or other status of the Property; (v) the suitability of the Property for Buyer’s intended useany and all activities and uses which Purchaser may conduct thereon, 6including the possibilities for future development of the Property; (vi) the environmental habitability, merchantability, marketability, profitability or fitness for a particular purpose of the Property; (vii) the manner, quality, state of repair or lack of repair of the Property; (viii) the nature, quality or condition of the Property (Property, including, without limitation, the water, soil and geology; (ix) the compliance of or by the Property or its operation with any contamination inlaws, rules, ordinances or regulation of any applicable governmental authority or body; (x) the manner or quality of the construction or materials, if any, incorporated into the Improvements; (xi) the presence or absence of hazardous materials at, on, under under, or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutesany environmental protection, pollution or land use laws, codesrules, ordinancesregulation, regulations orders or requirements relating to the userequirements, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to to, Title III of the ADAAmericans with Disabilities Act of 1990, OSHAany state health and safety code, the Subdivision Map Federal Water Pollution Control Act, the Toxic Substances Control Federal Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response, Compensation and Liability ActAct of 1980, as amended, the Resource Conservation and Recovery Act of 1976, the Clean Water Act, the Resource Conservation Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and Recovery Act and regulations promulgated under any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions of the foregoing; (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13xii) the possibility conformity of conversion the Improvements to any plans or specifications, including any plans and specifications that may have been or may be provided to Purchaser; (xiii) the conformity of the Property to condominiums past, current or Buyer's ability future applicable zoning or building requirements, or the existence of vested land use, zoning or building entitlements affecting the Property; (xiv) the adequacy of any undershoring; (xv) the adequacy of any drainage; (xvi) the fact that all or a portion of the Land may be located on or near an earthquake fault line; (xvii) the absence or presence of mold; or (xviii) with respect to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating matter.
B. Purchaser represents to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and Seller that, except for Seller representations Seller’s Representations and warranties expressly Warranties set forth in Section 3.1 hereofthis Agreement and in the Closing Documents, Purchaser is relying solely upon Purchaser’s own investigation of the Property in making its decision to purchase the Property. Subject to Seller’s Representations and Warranties set forth in this Agreement and in the Closing Documents, Purchaser's decision will be based on the results of its analysis and the reports it will obtain, including reports concerning Hazardous Materials. Purchaser further acknowledges and agrees that, subject to Seller’s Representations and Warranties set forth in this Agreement and in the Closing Documents, any information made available to Purchaser or provided or to be provided by or on behalf of Seller with respect to the Property that was not prepared by Seller was obtained from a variety of sources and that Seller has not made any independent investigation or verification of such information and makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding representations as to the accuracy or completeness of such information (including title information).
C. Notwithstanding anything in this Agreement to the contrary, as a sophisticated and knowledgeable investor in real property, Purchaser is aware that mold, water damage, fungi, bacteria, indoor air pollutants or other biological growth or growth factors (collectively called "Indoor Air Pollutants") may exist at the Property Materialsand that such Indoor Air Pollutants may be undiscoverable during routine or invasive inspections, the Title Report ownership, or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as operations of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase PriceProperty. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations In evaluating its purchase of the Property and determining the Purchase Price, Purchaser has taken (or will take) these matters into account, and, subject to Seller’s Representations and Warranties set forth in this Agreement and in the Closing Documents, Purchaser will assume, at Closing, the risk of all Indoor Air Pollutants, including, without limitation, those resulting from patent or latent construction defects, and Purchaser, for and on behalf of itself and all future owners and/or occupants of the Property or any portion thereof hereby waives, releases and forever discharges Seller, its members, officers, employees and agents from all related claims or causes of action. The foregoing release will be in addition to, and not in place of, any and all other due diligence investigations of Buyerreleases contained in or related to this Agreement.
3.4.2 BUYERD. Seller makes no representations to Purchaser regarding the presence or absence of radon gas on the Property. Purchaser releases Seller from any loss, FOR ITSELFclaim, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATEliability or damage now or hereafter arising from or relating to the presence or absence of radon gas.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Storage Trust VI, Inc.)
AS-IS. The terms Buyer's purchase of this Section 3.4 the Property shall survive Closing indefinitely.be subject to the following:
3.4.1 a. Buyer represents agrees to purchase the Property "as is" and "with all faults," solely in reliance on Buyer's own investigation of the Property. Buyer acknowledges that it is has conducted a sophisticated real estate investor review of the physical and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations environmental condition of the Property, the expenses of owning and operating the Property, the extent to review which the Property Materials complies with governmental laws, ordinances, rules and to conduct any related due diligence of regulations, the Property which Buyer present and proposed land use regulations that affect or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of may affect the Property and the Property's suitability fitness of the Property for Buyer’s intended 's proposed use, among other things. In undertaking its investigation, Buyer has been and will be advised by attorneys, and other advisors. EXHIBIT "B"
b. Buyer acknowledges that Seller makes no representations or warranties express or implied wit respect to the Property. In light of Buyer's willingness to diligently investigate and evaluate the Property and to accept the Property on an "as is" and "with all faults" basis, the parties have negotiated the terms and conditions of this Agreement, including the Purchase Price. Buyer acknowledges that Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence "as is" and investigation "with all faults", without other express or implied warranties of Seller.
c. By acquiring the Property Buyer shall be deemed to have waived any and all objections to the physical characteristics, including acreage, size of improvements and conditions of the Property which would be disclosed by such inspection or otherwise; and agreed to purchase the Property having inspected and accepted the condition and repair of the improvements, and without regard to any other physical or environmental condition of the Property, including the Physical Inspections (without limitation) topography, climate, soil, subsoil, existing fill, drainage and Other Investigations of the Propertysurface and groundwater quality, and fully without regard to air and completely representswater rights, acknowledgesthe availability of utilities and water, understands present and agrees thatfuture zoning, except purposes for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and which the Seller Closing DocumentsProperty is suited, Buyer is not relying upon any representationsaccess to public roads, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Sellerproposed routes, or any officerenlargement of roads or extensions thereof, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate present or subsidiary of any of them, future assessments or any other person condition or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, matter affecting the "Released Parties"), may have made with respect Property.
d. Except to the following (collectivelyextent such matter is caused by a breach by Seller under this Agreement, Buyer hereby waives, releases, acquits, and forever discharges Seller, and Seller's agents, directors, officers and employees to the "Condition maximum extent permitted by law, of and Suitability from any and all claims, actions, causes of action, demands, rights, liabilities, damages, losses, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, that it now has or which may arise in the future on account of or in any way growing out of or connected with the Property"): 1) ; including, without limitation;
i. the contents, accuracy and completeness existence or condition of any improvements on the Property Materials, 2) any matters which were disclosed by or should have been disclosed by and/or the Physical Inspections personal property;
ii. the physical and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition conditions of the Property (including, without limitation, any contamination limitation the existence of Hazardous Materials in, on, under or adjacent about the Property;
iii. the state of the title to the Property;
iv. any settlement or subsidence of any fill or filled ground on the Property by or settlement or subsidence of construction thereon, if any; EXHIBIT "B"
v. any solidgovernmental laws and regulations, including, but not limited to, zoning, environmental, asbestos control, hazardous or toxic substance, waste and/or material or waste, including lead paint, asbestos and toxic or other mold land use laws and mildew), 7) regulations to which the physical condition or quality Property may be subject; and
vi. Buyer's contemplated use of the Property. BUYER EXPRESSLY WAIVES ANY OF ITS RIGHTS GRANTED UNDER CALIFORNIA CIVIL CODE SECTION 1542, including without limitation the plumbingWHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, sewer, HVAC, electrical, mechanical and similar operating systemsWHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." SELLER__________ BUYER ______________
e. Buyer acknowledges that Seller has furnished, or the functionalitymay furnish, location to Buyer certain "third party" items, which may include, without limitation, items prepared by third party architects, contractors, title companies, and accessibility thereofconsultants, the adequacy of the roofssuch as engineering data, foundationstitle reports and related title information, structural integrity or earthquake preparedness of the PropertyHazardous Materials reports and information, the quality of construction feasibility reports, soils reports, building plans and sufficiency of undershoringspecifications, or any soils, subsurface, subsidence, drainage, seismic, geologic utility plans and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access information pertaining to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion construction and installation of the Property Improvements and the Equipment and Components. It is agreed that all such "third party" items are furnished without representation or warranty on the part of Seller whatsoever, and Buyer agrees that Buyer will not assert any liability against Seller in any regard as to condominiums such "third Party" items.
f. Any disclosure whatsoever to Buyer pursuant to this Agreement shall not constitute a warranty or representation of Seller. To the extent any information provided by Seller shall be known by Buyer or Buyer's ability agents (all such knowledge of Buyer's Agents being imputed to Buyer) to be untrue or inaccurate as a result of any disclosure to Buyer by Seller prior to closing, with Seller hereby agreeing to advise Buyer, prior to closing of any changes in information of which Seller has actual knowledge; or any investigation conducted by Buyer or on behalf of Buyer prior to the Close of Escrow or as a result of any knowledge otherwise acquired by Buyer or any of Buyer's Agents, Buyer shall have no rights under this Agreement by reason of that particular untruth or inaccuracy, and any such information provided by Seller shall be deemed to be modified to the extent necessary to render it consistent with such knowledge.
g. Upon the close of escrow. Seller shall assign to Buyer any existing warranties which Seller may have received from the building contractor to the extent the EXHIBIT "B" same may be assigned, provided that Seller shall have no obligation to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyersuch warranties.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Lease Agreement (Avanex Corp)
AS-IS. The terms Buyer acknowledges and agrees that prior to the end of this Section 3.4 shall survive Closing indefinitely.
3.4.1 the Due Diligence Period, Buyer represents that it is a sophisticated real estate investor and owner of real property and its representatives will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with have been afforded sufficient time and opportunity to make and complete the Physical Inspections and Other Investigations such review of the Property, to review the Property Materials and any other documents relating to conduct any related due diligence of the Property which Buyer have been delivered or made available to Buyer, to perform its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and own independent economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations analysis of the Property, and fully to make and completely representscomplete such inspections of the Property and matters related thereto as Buyer and its representatives desire, acknowledgesincluding, understands without limitation, governmental laws and agrees thatregulations to which the Property is subject, and Buyer shall accept the Property upon the basis of Buyer’s own review and determination of all matters pertaining to the Property, except for Seller as set forth in the Sellers’ express representations and warranties expressly set forth in Section 3.1 of this Agreement (all of which shall be subject to the express limitations and conditions set forth in this Agreement, and being collectively the Seller Closing Documents“Sellers’ Representations”). Buyer acknowledges and agrees that the Property is to be sold and conveyed to and accepted by Buyer in an “AS IS AND WITH ALL FAULTS” condition with all faults, except as set forth in Sellers’ Representations. Buyer is not relying upon any representations, warranties further acknowledges that prior to the end of the Due Diligence Period it will have reviewed and be knowledgeable of the matters described in the Property Materials and all other documents delivered or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, made available to Buyer or any officerof the Buyer’s Representatives, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate and that Buyer will acquire the Property subject to all matters described in such documents. Sellers make no representation or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect warranty as to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and or completeness of the Property MaterialsMaterials or any other documents delivered or made available to Buyer or Buyer’s Representatives except as expressly provided in Section 9(a)(11)). Buyer acknowledges that the Property Materials provided may not constitute all documents in a Seller’s files, 2) and that there may be documents in locations other than a Seller’s office identified in Section 19 or which a Seller have not located or of which they are unaware, but that Sellers have no obligation of make inquiry, investigate or search any matters which were disclosed by such files or should documents. Buyer acknowledges that some or all of such documents have been disclosed obtained by the Physical Inspections and Other Investigations of the Property, 3) the financial performance a Seller from previous owners or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness users of the Property or other sources and Sellers make no representation or warranty as to the reputation or reliability of the persons or entities preparing such documents. Buyer further acknowledges that, notwithstanding that Sellers have delivered or made any portion thereof documents available for any particular purpose or Buyer’s review, Buyer will make its own investigation relative to the Property and will rely on its own investigation in determining the suitability of the Property for Buyer’s intended its use. Without limiting the foregoing, 6) Buyer shall be responsible for obtaining from the environmental condition of the Property (including, without limitation, Escrow Holder or Title Company any contamination in, on, under or adjacent and all documents relating to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality title of the Property, for obtaining from the City any City development, zoning or land use approvals, and for obtaining from applicable governmental and law enforcement agencies such information relative to law enforcement, criminal activity, safety and security, if it desires such information. Sellers do not make any representations or warranties of any kind whatsoever, either express or implied or arising by operation of law, with respect to the Property or any of such related matters, including any warranty of condition, habitability, merchantability, suitability or fitness for a particular purpose or otherwise, except as expressly provided in this Agreement. In particular, but without limitation limiting the plumbingforegoing, sewerSellers make no representations or warranties with respect to the use, HVACcondition, electricaltitle, mechanical and similar operating systems, occupation or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness management of the Property, the quality of construction and sufficiency of undershoringeconomic viability, value, safety or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) security issues relating to the Property’s or Seller’s , compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADAmatters, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or and restrictions (whether or not of record), 12) access to other local, municipal, regional, state or federal requirements, or other statutes, laws, codes, ordinances, regulations or requirements, except as set forth in Sellers’ Representations. Buyer acknowledges that it is entering into this Agreement on the basis of Buyer’s own investigation of the physical and environmental conditions of the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any all other matter matters affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation without limitation mold and subsurface or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Propertylatent conditions, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materialsits investigations, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerexcept as set forth in Sellers’ Representations.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT I, Inc.)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing DocumentsAgreement, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), F:\71018.005\Purchase Agreement\Purchase Agreement – Xxxxxx Village v8.doc may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (including, without limitation, any contamination in, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer.
3.4.2 BUYERExcept as set forth in this Agreement with respect to the breach of any F:\71018.005\Purchase Agreement\Purchase Agreement – Xxxxxx Village v8.doc representations or warranties of Seller, FOR ITSELFBuyer, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BYfor itself, THROUGH OR UNDER BUYERand its affiliates, HEREBY WAIVESsuccessors and assigns and any other party claiming by, RELEASESthrough or under Buyer, REMISEShereby waives, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIESreleases, OF AND FROM ANY CLAIMSremises, ACTIONSacquits and forever discharges the Released Parties, CAUSES OF ACTIONof and from any claims, DEMANDSactions, RIGHTScauses of action, DAMAGESdemands, COSTSrights, EXPENSESdamages, PENALTIEScosts, FINES OR COMPENSATION WHATSOEVERexpenses, WHETHER DIRECT OR INDIRECT penalties, fines or compensation whatsoever, whether direct or indirect (COLLECTIVELYcollectively, THE the "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOFwhich any of them now has or may have in the future on account of or in any way arising out of or in connection with the Property or the Condition and Suitability thereof, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING whether caused by the Released Parties or any other party and whether or not known to Buyer at or before the Closing (COLLECTIVELYcollectively, THE the "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARYWithout limitation on the foregoing, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONSBuyer hereby assumes full responsibility for any injuries, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTSdamages, (II) SELLER’S FRAUDlosses or liabilities that may arise or have arisen out of the Released Matters, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTSwhether known or unknown. WITHOUT LIMITATION ON THE FOREGOINGBuyer acknowledges and hereby expressly agrees this Agreement shall extend to all unknown, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIESunsuspected and unanticipated claims or damages, DAMAGESas well as those which are now disclosed, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWNwith respect to the Released Matters. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION The parties hereby acknowledge that each of the Released Parties other than Seller is intended to be a third party beneficiary of this Section 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Purchase and Sale Agreement (KBS Legacy Partners Apartment REIT, Inc.)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents (a) Purchaser acknowledges that it is a an experienced and sophisticated purchaser of commercial real estate investor and owner of real property and will conduct its own due diligence and investigations regarding projects such as the Property and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents that, prior to the end of the Study Period, it will have a full and acknowledges that this Agreement provides Buyer with sufficient time and complete opportunity to complete conduct such investigations, examinations, inspections and analyses of the Physical Inspections Property as Purchaser, in its absolute discretion, may deem appropriate. Purchaser further acknowledges that, except for the Seller Representations and Other Investigations any representations or warranties of Seller contained in the Conveyance Documents, Purchaser has not relied upon any statements, representations or warranties by Seller or any agent of Seller.
(b) Purchaser agrees that the Property shall be sold and that Purchaser shall accept possession of the Property on the Closing Date strictly on an “AS IS, WHERE IS” AND “WITH ALL FAULTS, LIABILITIES, AND DEFECTS, LATENT OR OTHERWISE, KNOWN OR UNKNOWN” basis, with no right of set-off or reduction in the Purchase Price, and that, except for the Seller Representations and those of Seller contained in the Conveyance Documents, such sale shall be without representation or warranty of any kind, express or implied, including any warranty of income potential, operating expenses, uses, merchantability or fitness for a particular purpose, and Seller does hereby disclaim and renounce any such additional representation or warranty. Purchaser specifically acknowledges that, except for the Seller Representations or those of Seller in the Conveyance Documents, Purchaser is not relying on any other representations or warranties of any kind whatsoever, express or implied, from Seller, any other Seller Party or any broker or other agents as to any matters concerning the Property including: (1) the value of the Property, ; (2) any income to review be derived from the Property Materials and to conduct any related due diligence Property; (3) the suitability of the Property for any and all activities and uses which Buyer or its consultants or agents deem necessary and appropriate Purchaser may conduct thereon, including the possibilities for Buyer to fully and completely evaluate the physical, environmental and economic condition further development of the Property and or construction thereon; (4) the Property's suitability habitability, merchantability, marketability, profitability or fitness for Buyer’s intended use. Buyer is purchasing a particular purpose of the Property solely in reliance upon Buyer’s own due diligence and investigation or any improvements thereon; (5) the manner, quality, state of repair or lack of repair on the Property or any improvements thereon; (6) the nature, quality or condition of the Property, including with respect to water conditions, soil, geological or geotechnical condition (including soil expansiveness, corrosivity, or stability, or seismic, hydrological, geological and topographical conditions and configurations, including, without limitation, any opinions or conclusions of any soils engineer(s) retained to perform geotechnical and/or soils studies or to oversee any soils engineering aspects of developing the Physical Inspections Property); (7) the compliance of or by the Seller, the Property, or its operation with any codes, laws, rules, ordinances, regulations of any applicable governmental authority or body; (8) the manner or quality of the construction or materials incorporated into the Property; (9) compliance with environmental laws or land use laws, rules, regulations, orders, codes or requirements, including, but not limited to, the Americans with Disabilities Act of 1990, the Federal Water Pollution Control Act, the U.S. Environmental Protection Agency regulations at 40 CFR, Part 261, the Clean Water Act, the Safe Drinking Water Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, and/or any rules or regulations promulgated under any of the foregoing (as the same may be amended from time to time); (10) the presence or absence of radon gas, methane gas, asbestos any other Hazardous Materials at, on, under, or adjacent to the Property; (11) the conformity of any improvements to any plans or specifications, including, without limitation, any plans and Other Investigations specifications that may have been or may be provided to Purchaser; (12) the conformity of the Property to past, current or future applicable zoning or building requirements; (13) deficiency of any undershoring; (14) deficiency of any drainage; (15) the fact that all or a portion of the Property may be located on or near an earthquake fault line or in or near an earthquake or seismic hazard zone; (16) the existence of vested land use, zoning or building entitlements affecting the Property; (17) water rights or the availability of or access to water; (18) the presence or suitability of any utilities or availability thereof; (19) the completeness or accuracy of any information provided to Purchaser by Seller or its agents; or (20) any other matter relating to the Property or to the development, construction, operation, or sale of the Property, and fully and completely represents, acknowledges, understands . Purchaser further acknowledges and agrees that, except for Seller’s Representations, Seller representations is under no duty to make any affirmative disclosures or inquiry regarding any matter which may or may not be known to Seller or any of the other Seller Parties, and warranties Purchaser, for itself and for its successors and assigns, hereby expressly waives and releases Seller and each of the other Seller Parties from any such duty that otherwise might exist; provided, however, the foregoing provision shall not prevent Purchaser from relying on the Seller Representations, subject to the limitations and conditions relating thereto set forth in this Agreement.
(c) Except as expressly provided below in this Section 3.1 of this Agreement 6.5(c), Purchaser, for Purchaser and Purchaser’s successors and assigns, hereby releases Seller and the other Seller Closing DocumentsParties from, Buyer is not relying upon and irrevocably and unconditionally waives all claims and liability against Seller and each of the other Seller Parties for or attributable to, the following:
(i) any representationsand all statements or opinions heretofore or hereafter made, warranties or statements information furnished, by or on behalf of the Seller Parties to Purchaser or any of Purchaser’s agents or representatives; and
(ii) any and all losses, costs, claims, liabilities, expenses, demands or obligations of any kind or nature whatsoever, whether oral known or writtenunknown and foreseen or unforeseen, express attributable to the Property, whether arising or impliedaccruing before, that Selleron or after the Closing and whether attributable to events or circumstances which have heretofore or may hereafter occur, any direct or indirect constituent partnerincluding all losses, member or shareholder of Sellercosts, or any officerclaims, directorliabilities, shareholderexpenses, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made demands and obligations with respect to the following (collectivelystructural, the "Condition and Suitability of the Property"): 1) the contentsphysical, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property (includingincluding claims or liabilities relating to the presence, without limitation, discovery or removal of any contamination Hazardous Materials in, onat, under or adjacent to about the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar matters described in Section 6.5(b). Purchaser acknowledges and agrees that (1) Purchaser may hereinafter discover facts different from or in addition to those now (or as of the Closing) known to Purchaser, (2) Purchaser’s agreement to release, acquit and discharge Seller and the other Seller Parties as set forth herein shall remain in full force and effect notwithstanding the existence or discovery of any such additional or different facts, (3) Purchaser knowingly waives any rights, privileges and benefits under any federal, state or local lawslaw which may negatively impact the validity or enforceability of any part of the releases set forth in this Agreement, (4) upon the completion of the Closing, Seller shall be deemed to have satisfied all of Seller’s obligations, covenants and liabilities in this Agreement and in any documents executed by Seller in connection herewith other than those obligations of Seller that, by the express terms of this Agreement, survive the Closing (in which case such survival shall be subject to the limitations set forth in this Agreement), 11and (5) compliance Purchaser irrevocably covenants never to commence or prosecute, or to collude with others to commence or prosecute, against Seller or any applicable covenants, conditions other Seller Party any action or restrictions (whether or not of record), 12) access to proceeding based upon any claim covered by the Property and foregoing release. Purchaser understands the right to use adjoining property or rights of way, 13) the possibility of conversion legal significance of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents foregoing provisions and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time provisions of Section 6.5(b) and opportunity to complete its review this Section 6.5(c) were a material factor in Sellers’ acceptance of the State Purchase Price and that Sellers are unwilling to sell the Property unless Sellers and the other Seller Parties are expressly released as set forth in Section 6.5(b) and this Section 6.5(c). The releases contained in Section 6.5(b) and this Section 6.5(c) and elsewhere in this Agreement include claims of Title which Purchaser is presently unaware or which Purchaser does not presently suspect to exist, which, if known by Purchaser, would materially affect Purchaser’s release of Seller. Purchaser specifically waives the provisions of any law of any state, territory or jurisdiction the import of which is as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. Notwithstanding anything to the Propertycontrary in this Agreement, the provisions of Section 6.5(b) and thatthis Section 6.5(c) shall survive the Closing. Notwithstanding the foregoing or anything herein to the contrary, except for the releases and waivers set forth in this Section 6.5(c) are not intended and shall not be construed to affect or impair any rights or remedies that Purchaser may have against Seller representations and warranties as a result of a breach of any of Seller Representations or those contained in the Conveyance Documents, or of any covenant of Seller expressly set forth in Section 3.1 hereofthis Agreement, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding subject to the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges terms and agrees that the Property shall be conveyed by Seller and accepted by Buyer limitations on and Seller’s liability as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth elsewhere in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyerthis Agreement.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Real Estate Purchase and Sale Agreement (Lexicon Pharmaceuticals, Inc.)
AS-IS. The terms As of this Section 3.4 shall survive the Closing indefinitely.Date, Buyer will have:
3.4.1 Buyer represents that it is a sophisticated real estate investor (a) examined and owner of real property inspected the Portfolio and will conduct its own due diligence know and investigations regarding be satisfied with the Property physical condition, quality, quantity and Buyer’s intended uses thereof as provided for in this Agreement. Buyer further represents and acknowledges that this Agreement provides Buyer with sufficient time and opportunity to complete the Physical Inspections and Other Investigations state of repair of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely Portfolio in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documents, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Seller, or any officer, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6) the environmental condition of the Property all respects (including, without limitation, the compliance of the Real Properties with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any contamination incomparable local or state laws (collectively, onthe “ADA”)) and by consummating this transaction at the Close of Escrow, under shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or adjacent advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, Real Properties or the functionalitybusiness conducted thereon, location and accessibility thereofBuyer, by consummating this transaction at the adequacy Close of Escrow, shall be deemed to have ACTIVE 31157768v21 ‑22‑ determined that the roofs, foundations, structural integrity or earthquake preparedness of same and the Property, the quality of construction information and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic data contained therein and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9evidenced thereby are satisfactory to Buyer;
(c) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with reviewed all applicable statutes, laws, codes, ordinances, rules and governmental regulations or requirements relating to the use(including, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to, those relating to building, zoning and land use) affecting the ADAdevelopment, OSHAuse, occupancy or enjoyment of the Subdivision Map ActReal Properties, and Buyer, by consummating this transaction at the Toxic Substances Control ActClose of Escrow, shall be deemed to have determined that the Comprehensive Environmental Responsesame are satisfactory to Buyer; and
(d) at its own cost and expense, Compensation made its own independent investigation respecting the Portfolio and Liability Actall other aspects of this transaction, and shall have relied thereon and on the Clean Water Actadvice of its consultants in entering into this Agreement, and Buyer, by consummating this transaction at the Resource Conservation and Recovery Act and any other similar federalClose of Escrow, state or local lawsshall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEEDS DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), 11THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) compliance with any applicable covenantsBY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "BUYER AGREES TO ACCEPT THE PORTFOLIO ON AN “AS IS, ” AND “WHERE IS” BASIS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of Buyer.
3.4.2 BUYER, FOR ITSELF, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA (AS DEFINED ABOVE)). BUYER ACKNOWLEDGES THAT, EXCEPT FOR SELLER’S WARRANTIES, BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS SUCCESSORS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND ASSIGNS LEGAL CONDITION OF THE PORTFOLIO AND THAT, EXCEPT FOR SELLER’S WARRANTIES, BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY OTHER PARTY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER BUYEROR ON SELLER’S BEHALF CONCERNING THE PORTFOLIO. ADDITIONALLY, BUYER AND SELLER HEREBY WAIVESAGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, RELEASESBUYER IS TAKING THE PORTFOLIO “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, REMISES, ACQUITS AND FOREVER DISCHARGES THERE IS NO WARRANTY BY SELLER THAT THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTSPORTFOLIO IS FIT FOR A PARTICULAR PURPOSE, (IIB) EXCEPT FOR SELLER’S FRAUDWARRANTIES, BUYER IS ACTIVE 31157768v21 ‑23‑ SOLELY RELYING UPON ITS EXAMINATION OF THE PORTFOLIO, AND (C) BUYER TAKES THE PORTFOLIO UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (III) SELLER'S INDEMNITIES IN FAVOR EXCEPT FOR THE LIMITED WARRANTIES OF BUYER TITLE SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTSDEEDS AND SELLER’S WARRANTIES). WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERSFOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PORTFOLIO OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE RELEASED PARTIES ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO BUYER’S REVIEW OF THE CONDITION OF THE PORTFOLIO;
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER THAN INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PORTFOLIO. BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTIES MAY OR MAY NOT CONTAIN ASBESTOS AND, IF A REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTIES AND THEIR SUITABILITY FOR BUYER’S INTENDED TO BE A THIRD-PARTY BENEFICIARY USE. THE PROVISIONS OF THIS SECTION 3.4.211.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW. NOTHING IN NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY CONTAINED HEREIN, THE PROVISIONS OF THIS SECTION 3.4.2 11.2 SHALL SERVE NOT APPLY TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.(a) SELLER’S WARRANTIES, AND (b) ANY SELLER’S FRAUD. /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS /s/CJS BUYER’S INITIALS
Appears in 1 contract
Samples: Portfolio Purchase and Sale Agreement (KBS Real Estate Investment Trust III, Inc.)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property and Buyer’s intended uses thereof as provided for Notwithstanding anything in this Agreement. Buyer further represents Agreement to the contrary, with the sole exception of the Seller Representations and acknowledges that representations with respect to title, the entry by Purchaser into this Agreement provides Buyer with sufficient time and opportunity the **** Material omitted pursuant to complete the Physical Inspections and Other Investigations a request for confidential treatment under Rule 24b-2 of the Property, to review Exchange Act of 1934. Material filed separately with the Property Materials Securities and to conduct any related due diligence Exchange Commission. acquisition by Purchaser of the Property which Buyer or its consultants or agents deem necessary shall be based solely upon the full and appropriate for Buyer to fully complete observation and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations examination by Purchaser of the Property, and fully and completely representsall conditions affecting the Property, acknowledges, understands and agrees that, except for Seller representations and warranties expressly set forth in Section 3.1 of this Agreement and the Seller Closing Documentsusage to which the Property may be put, Buyer is not relying upon and the nature, quality or condition of the Property, including, without limitation, the water, soil, geology, zoning, tax consequences, physical or environmental condition, valuation, governmental approvals, governmental regulations, suitability or fitness of the Property for any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, express or implied, that Seller, any direct or indirect constituent partner, member or shareholder of Sellerpurpose, or any officerthe habitability, director, shareholder, employee, agent, representative, broker, servant, successor, assign, affiliate or subsidiary of any of themmerchantability, or any other person matter or entity acting on behalf of Seller thing relating to or any such other party for whom Seller or such other party may be held legally responsible (collectively, the "Released Parties"), may have made with respect to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of affecting the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or and the suitability of the Property for Buyer’s intended useany activities and uses which Purchaser may conduct thereon, 6) and any compliance or non-compliance of the environmental Property with any Laws, and Purchaser represents and warrants to Seller that by Closing Purchaser shall have made such complete observation and examination, and Purchaser shall accept the Property in the existing condition of the Property (includingProperty, without limitationany covenant, warranty or representation, express or implied, oral or written, past, present or future, in fact or by law, other than Seller’s warranty, if any, with respect to title set forth in the Deed, and the Seller Representations, as expressly provided in this Agreement, or any condition or conditions affecting or related to the Property, and the Property shall be conveyed “AS IS”, “WHERE IS” and “WITH ALL FAULTS”, and there are no other warranties or representations, collateral to or affecting the Property by Seller or any third party. Without limiting the generality of the foregoing, other than as expressly provided in Section 9.1.5, Seller does not make and has not made, and specifically disclaims, any contamination inrepresentation regarding the presence or absence of any “Hazardous Substances”, as hereinafter defined, at, on, under or adjacent to the Property by any solid, hazardous or toxic substance, material or waste, including lead paint, asbestos and toxic or other mold and mildew), 7) the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of about the Property or the accuracy compliance or non-compliance of the Property with any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to the ADA, OSHA, the Subdivision Map Act, the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws)so-called “Superfund” or “Superlien Statute”, 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access to the Property and the right to use adjoining property or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting Laws regulating, related to or relating to the Property, including but not limited to those matters relating to the use, operation, condition, title, occupation imposing liability or management standards of the Property and Buyer’s ability to obtain conduct concerning any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of BuyerHazardous Substances.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (I) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATE.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
AS-IS. The terms of this Section 3.4 shall survive Closing indefinitely.
3.4.1 Buyer represents (a) Purchaser expressly acknowledges that it is a sophisticated real estate investor and owner of real property and will conduct its own due diligence and investigations regarding the Property is being sold and Buyer’s intended uses thereof accepted “AS-IS, WHERE-IS, WITH ALL FAULTS” except as may otherwise be specifically provided for in this Agreement. Buyer further represents .
(b) This Agreement, as written, contains all of the terms of the agreement entered into between the parties as of the date hereof, and Purchaser acknowledges that this Agreement provides Buyer with sufficient time and opportunity neither Seller nor any of Seller’s affiliates, nor any of their agents or representatives, has made any representations or held out any inducements to complete the Physical Inspections and Other Investigations of the Property, to review the Property Materials and to conduct any related due diligence of the Property which Buyer or its consultants or agents deem necessary and appropriate for Buyer to fully and completely evaluate the physical, environmental and economic condition of the Property and the Property's suitability for Buyer’s intended use. Buyer is purchasing the Property solely in reliance upon Buyer’s own due diligence and investigation of the Property, including the Physical Inspections and Other Investigations of the Property, and fully and completely represents, acknowledges, understands and agrees that, Purchaser except for Seller representations and warranties expressly as set forth in Section 3.1 of this Agreement, or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby, and the Seller Closing Documentshereby specifically disclaims any representation, Buyer is not relying upon any representations, warranties or statements of any kind or nature whatsoever, whether oral or written, past, present or future, other than those specifically set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby. Without limiting the generality of the foregoing, Purchaser has not relied on any representations or warranties, and neither Seller nor any of Seller’s affiliates, nor any of their agents or representatives has or is willing to make any representations or warranties, express or implied, other than as may be expressly set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby.
(c) In the event this Agreement is not terminated then, it shall be deemed an acknowledgment by Purchaser that Purchaser has inspected the Property, is thoroughly acquainted with and accepts its condition, and has reviewed, to the extent necessary in its discretion, all the Property Information (as hereinafter defined). Except as set forth in this Agreement or in any document or instrument delivered by Seller to Purchaser in connection with this Agreement or the transactions contemplated hereby, Seller shall not be liable or bound in any manner by any oral or written “setups” (marketing packages containing information about the Property) or information pertaining to the Property or the rents furnished by Seller, Seller’s affiliates, their agents or representatives, any direct real estate broker, or indirect constituent partnerother person.
(d) Except as set forth in this Agreement (including without limitation all documents executed in connection with the Closing and any other documents or instruments delivered by Seller to Purchaser in connection with Closing), member or shareholder of Purchaser hereby waives, releases and forever discharges Seller, or any officerits affiliates, directorsubsidiaries, shareholderofficers, employeedirectors, agentshareholders, representativeemployees, brokerindependent contractors, servantpartners, successorrepresentatives, assignagents, affiliate or subsidiary of any of them, or any other person or entity acting on behalf of Seller or any such other party for whom Seller or such other party may be held legally responsible successors and assigns (collectively, the "“Released Parties"”), and each of them, from any and all causes of action, claims, assessments, losses, damages (compensatory, punitive or other), liabilities, obligations, reimbursements, costs and expenses of any kind or nature, actual, contingent, present, future, known or unknown, suspected or unsuspected, including, without limitation, interest, penalties, fines, and attorneys’ and experts’ fees and expenses, whether caused by, arising from, or premised, in whole or in part, upon Seller’s acts or omissions, and notwithstanding that such acts or omissions are negligent or intentional, or premised in whole or in part on any theory of strict or absolute liability, which Purchaser, its successors or assigns, may have made with respect or incur in any manner or way connected with, arising from, or related to the following (collectively, the "Condition and Suitability of the Property"): 1) the contents, accuracy and completeness of the Property Materials, 2) any matters which were disclosed by or should have been disclosed by the Physical Inspections and Other Investigations of the Property, 3) the financial performance or the economic prospects of the Property, 4) the applicability or amount of any taxes upon or assessments against the Property, 5) the merchantability or habitability of the Property, the fitness of the Property or any portion thereof for any particular purpose or the suitability of the Property for Buyer’s intended use, 6including without limitation (i) the environmental condition of the Property Property, or (including, without limitation, any contamination in, on, under ii) actual or adjacent to alleged violations of environmental laws or regulations in connection with the Property by and/or any solidproperty conditions. Purchaser agrees, hazardous or toxic substance, material or waste, including lead paint, asbestos represents and toxic or other mold and mildew), 7) warrants that the physical condition or quality of the Property, including without limitation the plumbing, sewer, HVAC, electrical, mechanical and similar operating systems, or the functionality, location and accessibility thereof, the adequacy of the roofs, foundations, structural integrity or earthquake preparedness of the Property, the quality of construction and sufficiency of undershoring, or any soils, subsurface, subsidence, drainage, seismic, geologic and hydrologic matters, 8) the size or dimensions of the Property or the accuracy of any floor plans, square footage estimates, drawings, renderings or lease abstracts, 9) whether the appliances, plumbing or electrical systems matters released herein are in working order, 10) the Property’s or Seller’s compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to the use, operation, leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters (including but not limited to matters which are known, disclosed, suspected or foreseeable, and Purchaser hereby waives any and all rights and benefits which it now has, or in the ADAfuture may have, OSHA, conferred upon Purchaser by virtue of the Subdivision Map Act, provisions of any law which would limit or detract from the Toxic Substances Control Act, the Comprehensive Environmental Response, Compensation foregoing general release of known and Liability Act, the Clean Water Act, the Resource Conservation and Recovery Act and any other similar federal, state or local laws), 11) compliance with any applicable covenants, conditions or restrictions (whether or not of record), 12) access unknown claims. Notwithstanding anything contained herein to the Property and contrary, Purchaser shall have the right to use adjoining property implead Seller into any third party tort claim or rights of way, 13) the possibility of conversion of the Property to condominiums or Buyer's ability to obtain any required governmental approvals in connection therewith, and 14) any other matter affecting or action relating to the Property, including but not limited to those matters relating arising prior to the use, operation, condition, title, occupation or management of the Property and Buyer’s ability to obtain any required governmental approvals in connection therewith. Buyer further represents and acknowledges and agrees that the period from the Effective Date until the Title Review Deadline provides Buyer with sufficient time and opportunity to complete its review of the State of Title to the Property, and that, except for Seller representations and warranties expressly set forth in Section 3.1 hereof, Seller makes no representation or warranty of any kind or nature whatsoever, either express or implied, regarding the accuracy or completeness of the Property Materials, the Title Report or the Survey. Buyer further acknowledges and agrees that the Property shall be conveyed by Seller and accepted by Buyer on and as of the Closing Date "AS IS, WHERE IS, WITH ALL FAULTS", without any representation or warranty of any kind or nature whatsoever, either express or implied, except as expressly set forth in Section 3.1 hereof, and with no right of setoff or reduction in the Purchase Price. Buyer hereby assumes the risk that adverse physical and environmental conditions may not have been revealed by the Property Materials, Buyer’s Physical Inspections and Other Investigations of the Property and any other due diligence investigations of BuyerClosing.
3.4.2 BUYER, FOR ITSELF, AND ITS SUCCESSORS AND ASSIGNS AND ANY OTHER PARTY CLAIMING BY, THROUGH OR UNDER BUYER, HEREBY WAIVES, RELEASES, REMISES, ACQUITS AND FOREVER DISCHARGES THE RELEASED PARTIES, OF AND FROM ANY CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES, COSTS, EXPENSES, PENALTIES, FINES OR COMPENSATION WHATSOEVER, WHETHER DIRECT OR INDIRECT (COLLECTIVELY, THE "Claims"), WHICH ANY OF THEM NOW HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE PROPERTY OR THE CONDITION AND SUITABILITY THEREOF, WHETHER CAUSED BY THE RELEASED PARTIES OR ANY OTHER PARTY AND WHETHER OR NOT KNOWN TO BUYER AT OR BEFORE THE CLOSING (COLLECTIVELY, THE "Released Matters"). NOTWITHSTANDING ANYTHING TO THE CONTRARY, RELEASED MATTERS SHALL NOT INCLUDE: (Ie) SELLER'S BREACHES OF THOSE REPRESENTATIONS, WARRANTIES AND COVENANTS PROVIDED IN THIS AGREEEMNT OR IN THE SELLER CLOSING DOCUMENTS, (II) SELLER’S FRAUD, OR (III) SELLER'S INDEMNITIES IN FAVOR OF BUYER SET FORTH IN THIS AGREEMENT OR IN THE SELLER CLOSING DOCUMENTS. WITHOUT LIMITATION ON THE FOREGOING, BUYER HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY INJURIES, DAMAGES, LOSSES OR LIABILITIES THAT MAY ARISE OR HAVE ARISEN OUT OF THE RELEASED MATTERS, WHETHER KNOWN OR UNKNOWN. BUYER ACKNOWLEDGES AND HEREBY EXPRESSLY AGREES THIS AGREEMENT SHALL EXTEND TO ALL UNKNOWN, UNSUSPECTED AND UNANTICIPATED CLAIMS OR DAMAGES, AS WELL AS THOSE WHICH ARE NOW DISCLOSED, WITH RESPECT TO THE RELEASED MATTERS. THE PARTIES HEREBY ACKNOWLEDGE THAT EACH OF THE RELEASED PARTIES OTHER THAN SELLER IS INTENDED TO BE A THIRD-PARTY BENEFICIARY OF THIS SECTION 3.4.2. NOTHING IN THIS SECTION 3.4.2 SHALL SERVE TO RELEASE SELLER FROM LIABILITY SELLER MAY HAVE TO THIRD PARTIES FOR TORT CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE ACCRUING PRIOR TO THE CLOSING DATEThe provisions of this Section 13.12 shall survive the termination of this Agreement and the Closing.
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