Buyer’s Independent Investigation. (a) Buyer hereby acknowledges that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests and the Property. Such independent investigation by Buyer prior to the Effective Date included the following items, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, including: (i) all matters relating to title to the Property; (ii) all matters relating to governmental and other legal requirements with respect to the Property, such as Taxes, assessments, zoning, use permit requirements, water use, sewage, concessions and building codes; (iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the Property; (iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries; (v) the physical condition of the Real Property, including the interior, the exterior, the square footage of the Improvements, the structure, the roof, the paving, the utilities, and all other physical, structural and functional aspects of the Real Property; (vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance of the Property with all Environmental Laws, including environmental assessment reports; (vii) any easements and/or access rights affecting the Property; (viii) the Existing Leases with respect to the Real Property and all matters in connection therewith, including the ability of the Tenants thereto to pay the rent; (ix) the Existing Contracts and any other documents or agreements of significance affecting the Property; (x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and (xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests. (b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval. (c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth herein. (d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, (I) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT. (e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Strategic Hotels & Resorts, Inc)
Buyer’s Independent Investigation. “As-Is/Where-Is”.
(a) Subject to the representations and warranties of Seller in Section 3.1, by Buyer hereby acknowledges electing to proceed under Section 2.2, Buyer will be deemed to have acknowledged and agreed that it has been given the a full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests and the Property. Such independent investigation by Buyer prior to the Effective Date included the following items, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, either independently or otherwise relevant to its purchase through agents of the foregoingBuyer’s choosing, including, without limitation:
(i1) all All matters relating to title to the Property;
(ii) and survey, together with all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;.
(iii2) all zoning, land use, water use, building, environmental The physical condition and other statutes, rules, or regulations applicable to aspects of the Property;
(iv) all documents, corporate or otherwiseincluding, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Propertywithout limitation, including the interior, the exterior, the square footage of within the Improvementsimprovements on the Real Property and within each tenant space therein, the structure, seismic aspects of the Property, the foundation, roof, the paving, the parking facilities, utilities, and all other physical, structural physical and functional aspects of the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to . Such examination of the physical condition of the Property shall include an examination for the presence or absence of Hazardous Materials at, on which shall be performed or under arranged by Buyer (subject to the Property and the compliance provisions of the Property with all Environmental Laws, including environmental assessment reports;Section 9.3 hereof) at Buyer’s sole expense.
(vii3) any Any easements and/or access rights affecting the Property;.
(viii4) the Existing The Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto tenants to pay the rent;rent and the economic viability of the tenants.
(ix5) the Existing The Service Contracts and any other documents or agreements of significance affecting the Property;.
(x6) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all All other matters of material significance affectingaffecting the Property, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval.
(c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interestsincluding, the Subsidiariesbut not limited to, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth hereinDisclosure Items.
(b) Except as expressly stated herein (including the Seller’s representations and warranties), neither Seller nor Seller’s agents, Seller’s Broker, contractors or employees have made or make any other representation or warranty as to the truth, accuracy or completeness of the Property Information delivered by Seller to Buyer in connection with the transaction contemplated hereby or the source(s) thereof. Buyer acknowledges that some if not all of the Property Information was prepared by third parties other than Seller. Except as expressly stated herein (including the Seller’s representations and warranties), Seller expressly disclaims any and all liability for other representations or warranties, express or implied, statements of fact and other matters contained in the Property Information, or for omissions from the Property Information provided hereunder, or in any other written or oral communications transmitted or made available to Buyer, except to the extent that any of the foregoing are inconsistent with the Seller’s representations and warranties. Buyer acknowledges and agrees that all Property Information delivered by Seller to Buyer in connection with the transaction contemplated hereby are provided to Buyer as a convenience only and that any reliance on or use of such Property Information by Buyer shall be at the sole risk of Buyer. Without limiting the generality of the foregoing provisions, Buyer acknowledges and agrees that (a) any environmental or other report with respect to the Property which is delivered by Seller to Buyer shall be for general informational purposes only, (b) Buyer shall not have any right to rely on any such report delivered by Seller to Buyer, but rather will rely on its own inspections and investigations of the Property and any reports commissioned by Buyer with respect thereto, (c) neither Seller, any affiliate of Seller nor the person or entity which prepared any such report delivered by Seller to Buyer shall have any liability to Buyer for any inaccuracy in or omission from any such report and (d) BUYER SPECIFICALLY REPRESENTSthe failure to deliver any report as to the environmental or other condition of the Property, ACKNOWLEDGES AND AGREES THATincluding any proposal for work at the Property which was not performed by Seller, SUBJECT TO THE PROVISIONS HEREOF, shall not be actionable by Buyer under this Agreement or otherwise.
(Ic) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED (INCLUDING, BUT NOT LIMITED TO THE REPRESENTATIONS AND DELIVERED AT CLOSINGWARRANTIES SET FORTH IN SECTION 3.1 ABOVE), SELLERS SHALL SELL BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN IS PURCHASING THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED ON AN “AS IS WHERE IS, WHERE IS ” AND “WITH ALL FAULTS,” (II) BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED (INCLUDING, BUT NOT LIMITED TO THE REPRESENTATIONS AND DELIVERED AT CLOSINGWARRANTIES SET FORTH IN SECTION 3.1 ABOVE), BUYER IS NOT RELYING ON ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISEFROM SELLER, FROM ANY SELLER RELATED PARTIES, OR SUBSIDIARYTHEIR AGENTS OR BROKERS, NOR OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OTHER PERSON ACTING OR BROKER PURPORTING TO ACT ON BEHALF OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, MATTERS CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS PROPERTY (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE REPRESENTATIONS AND WARRANTIES IN SECTION 3.1, ABOVE), INCLUDING WITHOUT LIMITATION: (I) THE QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION AND ASPECTS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE STRUCTURAL ELEMENTS, SEISMIC ASPECTS OF THE PROPERTY, FOUNDATION, ROOF, APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES AND THE ELECTRICAL, MECHANICAL, HVAC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND APPLIANCES, THE SQUARE FOOTAGE WITHIN THE IMPROVEMENTS ON THE REAL PROPERTY AND WITHIN EACH TENANT SPACE THEREIN, (II) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF SOILS, GEOLOGY AND ANY GROUNDWATER, (III) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY, (IV) THE DEVELOPMENT POTENTIAL OF THE PROPERTY, AND THE PROPERTY’S USE, HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR ADEQUACY OF THE PROPERTY FOR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSINGPARTICULAR PURPOSE, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW (V) THE ZONING OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR LEGAL STATUS OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OTHER PUBLIC OR PRIVATE RESTRICTIONS ON USE OF LAW THE PROPERTY, (VI) THE COMPLIANCE OF THE PROPERTY OR TO COMPLY ITS OPERATION WITH THE REQUIREMENTS ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUTES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING GOVERNMENTAL OR QUASI-GOVERNMENTAL ENTITY OR OF ANY CERTIFICATE OTHER PERSON OR ENTITY, (VII) THE PRESENCE OF OCCUPANCY HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE PROPERTY OR THE ADJOINING OR NEIGHBORING PROPERTY, (VIII) THE QUALITY OF ANY LABOR AND MATERIALS USED IN ANY IMPROVEMENTS ON THE REAL PROPERTY, (IX) THE CONDITION OF TITLE TO THE PROPERTY, (X) THE LEASES, SERVICE CONTRACTS, OR OTHER DOCUMENTS OR AGREEMENTS AFFECTING THE PROPERTY, OR ANY INFORMATION CONTAINED IN ANY RENT ROLL FURNISHED TO BUYER FOR THE PROPERTY, (XI) THE VALUE, ECONOMICS OF THE OPERATION OR INCOME POTENTIAL OF THE PROPERTY, OR (X) ANY OTHER APPROVAL FACT OR PERMIT NECESSARY FOR ANY REPAIRS CONDITION WHICH MAY AFFECT THE PROPERTY, INCLUDING WITHOUT LIMITATION, THE PHYSICAL CONDITION, VALUE, ECONOMICS OF OPERATION OR ALTERATIONS NECESSARY TO OBTAIN INCOME POTENTIAL OF THE SAMEPROPERTY. In addition, ALL AT BUYER’S SOLE COST AND EXPENSESeller shall have no legal obligation to apprise Buyer regarding any event or other matter involving the Property which occurs after the Effective Date or to otherwise update the Due Diligence Items, unless and until an event or other matter occurs which would cause the information in the Property Information to materially change or for Seller to be unable to remake any of its representations or warranties contained in this Agreement. Nothing contained in this Section 3.6 shall be deemed to in any manner affect, reduce or otherwise void the Seller’s representations and warranties contained in Section 3.1 above.
Appears in 1 contract
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been is being given the full opportunity prior to during the Effective Date Due Diligence Period to inspect and investigate all aspects relating to the each and every aspect of each Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth hereinappropriate, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit will conclusively evidence Buyer's complete satisfaction with such independent investigation (but will not constitute a waiver of any breach of representation or warranty set forth in Section 4.1 (other than Sec tion 4.1(a)-(d)) unless such breach is disclosed in the Due Diligence Materials or is otherwise actually known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsshall include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the such Property;
(ii) all matters relating to governmental and other legal requirements with respect to the such Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the each Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the each Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements or the Leasehold Improvements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of the such Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting such Real Property;
(vi) the Leases with respect to such Real Property and all matters in connection therewith, including, without limitation, the ability of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of signifi cance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built survey, a physical inspection or an environmental site assessment of such Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered to Buyer for its review and approval include:
(i) a Title Commitment for each Real Property (and one or more updates thereto), together with copies of the underlying documents, and a copy of a survey of each Real Property sufficient to support the issuance of an ALTA policy of title insurance for such Real Property (each, a "Survey");
(ii) a Rent Roll for each Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) (A) annual operating, income and expense statements for each Real Property for calendar years 1995 and 1996 and (B) operating, income and expense statements for each Real Property for the period ending July 31, 1997, but in each case only for the period after acquisition of such Real Property by such Seller;
(v) copies of all Licenses and Permits in the possession of the applicable Seller;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the each Real Property and the compliance of the such Real Property with all Environmental Lawsenvironmental laws, including recent Phase I (and, in some cases, Phase II) environmental assessment reportssurveys;
(vii) to the extent in the possession of the applicable Seller or such Seller's property managers, copies of (i) the bills issued for the most recent year for each Real Property for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any easements and/or access rights affecting the Governmental Authority ("Real Estate Taxes") and personal property taxes and (ii) all notices or documents for any assess ments or bonds relating to each Real Property;
(viii) the Existing Leases with respect to the Real Property and all matters in connection therewithground lease creating each Leasehold Estate (each, including the ability of the Tenants thereto to pay the rent;a "Ground Lease"); and
(ix) the Existing Contracts Partnership Agreement and any other documents certificate of limited partnership for the Partnership, as amended or agreements of significance affecting modified through and in effect on the Property;
(x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvaldate hereof.
(c) Buyer acknowledges and agrees that (i) on or prior to the Deposit Date it is acquiring the Property based exclusively on will have completed its independent investigation of the Interests, the Subsidiaries, the Property Properties and the Due Diligence Materials, (ii) it is acquiring the Properties based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and the express also in reliance on Sellers' representations and warranties contained herein) and (iii) shall have no right after the Deposit Date to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Properties or the Due Diligence Materials. The funding of the Deposit on the Deposit Date by Buyer shall conclusively constitute Buyer's approval of each and every aspect of such Properties. The preceding sentence is not intended to relieve, and shall not relieve, any Seller from any of its obligations under Section 4.1, if any.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS EACH SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Spieker Properties Inc)
Buyer’s Independent Investigation. (a) Buyer hereby acknowledges and agrees that it has been given the a full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests and the Property. Such independent investigation by Buyer prior to Property (as it exists as of the Effective Date included the following itemsDate), which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, either independently or otherwise relevant to its purchase through agents of the foregoingBuyer’s choosing, including, without limitation:
(i) all matters relating to title to the Property;items described on Schedule 2 hereto (the “Due Diligence Documentation”). Buyer hereby acknowledges receipt of the Due Diligence Documentation.
(ii) all matters relating to title, together with all governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;,
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Property, including the interior, the exterior, the square footage . Such examination of the Improvements, the structure, the roof, the paving, the utilities, and all other physical, structural and functional aspects of the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance physical condition of the Property with all Environmental Lawsshall include an examination for the presence or absence of hazardous or toxic materials, including environmental assessment reports;substances or wastes (collectively, “Hazardous Materials”), which shall be performed or arranged by Buyer at Buyer’s sole expense,
(viiiv) any easements and/or access rights affecting the Property;,
(viiiv) the Existing Leases with respect to the Real Property service contracts and all matters in connection therewith, including the ability of the Tenants thereto to pay the rent;
(ix) the Existing Contracts and any other documents contracts or agreements of significance affecting the Property;
(x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; (hereinafter collectively referred to as “Contracts”), and
(xivi) all other matters of material significance affecting, or otherwise deemed relevant by Buyer with respect to affecting the Property and the InterestsProperty.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval.
(c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth herein.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, (I) EXCEPT AS EXPRESSLY SET FORTH PROVIDED IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED SECTION 2.2 ABOVE AND DELIVERED AT CLOSINGIN SECTION 5.1 BELOW, SELLERS SHALL SELL ARE SELLING AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN IS PURCHASING THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED ON AN “AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED BASIS AND DELIVERED AT CLOSING, THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY FROM SELLERS, THEIR AGENTS, OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, BROKERS AS TO ANY MATTER, MATTERS CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or and physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurableProperty, (ii) the dimensions or lot size quality, nature, adequacy, and physical condition of the Property or the square footage of the Improvements thereon or of soils, geology and any tenant space thereingroundwater, (iii) the development or income potentialexistence, or rights quality, nature, adequacy and physical condition of or relating to, utilities serving the Property, or (iv) the development potential of the Property’ , and the Property’s use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (ivv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (vvi) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority governmental or quasi-governmental entity or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above under or about the Property or any the adjoining or neighboring property, (viii) the quality condition of any labor and materials used in any portion of title to the Property, (ix) the condition of title to the Interests or the Property, Contracts (x) the Leases, Contracts or any other agreements affecting economics of the operation of the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or and (xi) the economics oftype, quality or the income and expenses, revenue nature of any use or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or business conducted on any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENTneighboring property.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE.
Appears in 1 contract
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the each and every aspect of each Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) and that Buyer is acquiring the Interests and the Property based exclusively on completely satisfied with such independent investigation and Sellers’ representations and warranties (but the foregoing will not constitute a waiver of any breach of representation or warranty set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or Section 4.1 unless such breach is disclosed in the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the such Property;
(ii) all matters relating to governmental and other legal requirements with respect to the such Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the each Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the each Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements or the Leasehold Improvements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of such Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting such Real Property;
(vi) the Leases with respect to such Real Property and all matters in connection therewith, including, without limitation, the ability of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of significance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of such Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a Survey of each Real Property;
(ii) a Rent Roll for each Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for each Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) to the extent in the possession of Seller or Seller's property manager, copies of reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the each Real Property and the compliance of the such Real Property with all Environmental Lawsenvironmental laws, including recent Phase I (and, in some cases, Phase II) environmental assessment reportssurveys;
(vii) to the extent in the possession of Seller or Seller's property managers, copies of (i) the bills issued for the most recent year for each Real Property for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any easements and/or access rights affecting the Governmental Authority ("Real Estate Taxes") and personal property taxes and (ii) all notices or documents for any assessments or bonds relating to each Real Property;; and
(viii) the Existing Leases with respect to the Real Property and all matters in connection therewithground lease creating each Leasehold Estate (each, including the ability of the Tenants thereto to pay the rent;
(ix) the Existing Contracts and any other documents or agreements of significance affecting the Property;
(x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvala "Ground Lease").
(c) Buyer acknowledges and agrees that (i) it is acquiring the Property based exclusively on has completed its independent investigation of the Interests, the Subsidiaries, the Property Properties and the Due Diligence Materials and has obtained, reviewed and approved a Title Commitment for each Property, (ii) it is acquiring the express Properties based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Properties or the Due Diligence Materials. Buyer has approved each and every aspect of such Properties. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the each and every aspect of each Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) and that Buyer is acquiring the Interests and the Property based exclusively on completely satisfied with such independent investigation and Sellers’ representations and warranties (but the foregoing will not constitute a waiver of any breach of representation or warranty set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or Section 4.1 unless such breach is disclosed in the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the such Property;
(ii) all matters relating to governmental and other legal requirements with respect to the such Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the each Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the each Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of such Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting such Real Property;
(vi) the Leases with respect to such Real Property and all matters in connection therewith, including, without limitation, the ability of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of significance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of such Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a Survey of each Real Property;
(ii) a Rent Roll for each Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for each Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) to the extent in the possession of Seller or Seller's property manager, reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the each Real Property and the compliance of the such Real Property with all Environmental Lawsenvironmental laws, including recent Phase I (and, in some cases, Phase II) environmental assessment reports;surveys; and
(vii) any easements and/or access rights affecting to the Property;
extent in the possession of Seller or Seller's property managers, copies of (viiii) the Existing Leases with respect to bills issued for the most recent year for each Real Property for all real estate taxes and all matters in connection therewithassessments, including the ability of the Tenants thereto to pay the rent;
water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any Governmental Authority (ix"Real Estate Taxes") the Existing Contracts and any other documents or agreements of significance affecting the Property;
personal property taxes and (xii) all matters notices or documents for any assessments or bonds relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvaleach Real Property.
(c) Buyer acknowledges and agrees that (i) it is acquiring the Property based exclusively on has completed its independent investigation of the Interests, the Subsidiaries, the Property Properties and the Due Diligence Materials and has obtained, reviewed and approved a Title Commitment for each Property, (ii) it is acquiring the express Properties based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Properties or the Due Diligence Materials. Buyer has approved each and every aspect of such Properties. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignee), acknowledges and agrees that it has been is being given the full opportunity prior to during the Effective Date Due Diligence Period to inspect and investigate all aspects relating to each and every aspect of the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, failure of Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result prior to the expiration of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to Period will conclusively evidence Buyer's complete satisfaction with such independent investigation (but will not constitute a waiver of any breach of representation or warranty set forth in SECTION 4.1 unless such breach is disclosed in the terms and conditions of this Agreement, the funding of the Deposit Due Diligence Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, rules or regulations applicable to the Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements and of each tenant space therein, the structure, the roof, the paving, the utilities, utilities and all other physical, structural physical and functional aspects of the Real Property, including the presence or absence of Hazardous Materials;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance of the Property with all Environmental Laws, including environmental assessment reports;
(viiv) any easements and/or access rights affecting the Property;
(viiivi) the Existing Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto to pay the rent;
(ixvii) the Existing Contracts and any other documents or agreements of significance affecting the Property;
(xviii) all matters that would be revealed by an ALTA as-built survey, a physical inspection or an environmental site assessment of the Property;
(ix) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xix) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to to, the Property and the InterestsProperty.
(b) The Due Diligence Materials heretofore delivered (or made available to be delivered within five (5) Business Days following the Effective Date) by Seller to Buyer for its review and approvalapproval include:
(i) the existing Leases (including all amendments thereto) and Contracts;
(ii) to the extent the following are in Seller's possession for the Property:
(1) current financial statements of Tenants and guarantors, if any;
(2) architectural drawings, plans and specifications; and
(3) existing survey.
(iii) existing owner's title policy for the Property; and
(iv) the bills issued for the most recent year for the Property for all real estate taxes ("REAL ESTATE TAXES").
(c) Buyer acknowledges and agrees that (i) on or prior to the expiration of the Due Diligence Period it will have completed its independent investigation of the Property and the Due Diligence Materials, (ii) it is acquiring the Property based exclusively on its such independent investigation of the Interests, the Subsidiaries, the Property and subject to all information disclosed in the Due Diligence Materials (and the express also in reliance on Seller's representations and warranties contained herein), and (iii) shall have no right after the expiration of Sellers set forth hereinthe Due Diligence Period to terminate this Agreement based on any further investigations of the Property or the Due Diligence Materials. The failure of Buyer to send a Termination Notice prior to the expiration of the Due Diligence Period shall conclusively constitute Buyer's approval of each and every aspect of the Property. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under SECTION 4.1, if any.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” " AND (IIii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSINGSECTION 4.1, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARYSELLER, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARYSELLER, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, INCLUDING WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDINGINCLUDING WITHOUT LIMITATION: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including including, without limitation, structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Real Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Real Property, or the Real Property’ 's use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Real Property for any particular purpose, (iv) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property, (v) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entityentity (including, without limitation, the Americans with Disabilities Act), (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s 's intended use or development of the Real Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the PropertyImprovements, (ix) the condition of title to the Interests or the Real Property, (x) the Leases, Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property, (xi) Seller's ownership of the Property or any portion thereof or (xixii) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership Real Property. Without limiting the generality of the Interests foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or the Property warranty of Seller, nor any partner, officer, employee, attorney, agent or broker of Seller, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right or remedy in favor of Buyer. Buyer further acknowledges and agrees that Seller is under no duty to make any inquiry regarding any matter that may or may not be known to Seller or any portion thereofpartner, officer, employee, attorney, agent or broker of Seller. WITHOUT LIMITING THE GENERALITY OF THE FOREGOINGThis SECTION 4.5(d) shall survive the Closing, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1or, if the Closing does not occur, beyond the termination of this Agreement. As a condition to Closing, and subject to the provisions of SECTION 3.1(f) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSINGand SECTION 7.2, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERSall unleased space shall be constructed to vanilla shell finish; provided, NOR ANY PARTNERhowever, MEMBERthat at Seller's option, OFFICERSeller may escrow with the Escrow Agent at Closing an amount necessary to complete such vanilla shell finish, EMPLOYEEand Seller shall complete such work when the spaced is leased; upon completion of such construction and delivery to Buyer of lien waivers from applicable contractors confirming that all work has been paid, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENTthe escrowed funds will be released to the Seller.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THAT THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY AND FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S 'S SOLE COST AND EXPENSE.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Buyer’s Independent Investigation. (a) Buyer hereby acknowledges and agrees that it has been given before the Closing a full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests Property and to interview all management, including the Property. Such independent investigation by Buyer prior general manager, the chief engineer, director of sales and marketing, other department representatives, existing tenants under the Leases, service providers and their representatives, either independently or through agents of Buyer's choosing (and Seller acknowledges and agrees that subject to the Effective Date included the following itemsprovisions of Section 11.1 hereof, which Seller has heretofore given and shall provide Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating with reasonable access to the Interests Property (subject to the rights of tenants under the Leases) to facilitate such inspection and the Property, or otherwise relevant to its purchase of the foregoinginvestigation), including, without limitation:
(i) all All matters relating to title to the Property;
(ii) title, together with all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;codes (including, without limitation, the Americans with Disabilities Act (the "ADA")).
(iiiii) The physical and environmental condition and all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to aspects of the Property;
(iv) all documents, corporate or otherwiseincluding, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Propertywithout limitation, including the interior, the exterior, the square footage of within the Improvementsimprovements on the Real Property, the structure, the roofmechanical, electrical, HVAC and plumbing components, the roofs, the paving, the utilities, and all other physical, structural physical and functional aspects of the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to . Such examination of the presence of Hazardous Materials at, on or under the Property and the compliance physical condition of the Property with all Environmental Laws, including environmental assessment reports;has included an examination for the presence or absence of Hazardous Materials.
(viiiii) any Any easements and/or access rights affecting the Property;.
(viiiiv) the Existing The Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto tenants to pay the rent;.
(ixv) the Existing Contracts The Equipment Leases, Contracts, insurance policies and any other documents or agreements of significance affecting the Property;.
(xvi) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all All other matters that Buyer deems to be of significance affecting, or otherwise deemed relevant by Buyer with respect to affecting the Property and the InterestsProperty.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval.
(c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth herein.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY AND THE GOLF RIGHTS ON AN "AS IS, WHERE IS, WITH ALL FAULTS" BASIS AND THAT, SUBJECT TO THE PROVISIONS HEREOF, (I) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSINGAGREEMENT, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY FROM SELLER, ITS AGENTS OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, BROKERS AS TO ANY MATTER, MATTERS CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, INCLUDING WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or and physical condition and aspects of the Property or any aspect or portion thereofProperty, including including, but not limited to, the structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, facilities and the electrical, ; mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, (ii) the quality, nature, adequacy, and physical condition of soils, geology and any groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potentialexistence, or rights quality, nature, adequacy and physical condition of or relating to, utilities serving the Property, or (iv) the development potential of the Property’ , and the Property's use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (ivv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (vvi) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority governmental or quasi-governmental entity or of any other person or entityentity (including, (vi) without limitation, the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the PropertyAmericans with Disabilities Act), (vii) the presence or absence of Hazardous Materials on, in, under, above under or about the Property or any the adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of improvements on the Real Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Equipment Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or and (xi) the operating performance and economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership Property (Buyer hereby expressly acknowledging that Seller has not made and is not making any representations or guarantees of any kind concerning the future operating performance and profitability of the Interests or Hotel and that Buyer shall make its own investigation and arrive at its own determination concerning the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENTfuture performance and profitability of the Hotel).
(ec) ANY REPORTSSubject to Seller's express representations set forth in Sections 6.1(f), REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER(g), AND BUYER AGREES THAT(j), EXCEPT AS EXPRESSLY SET FORTH HEREIN(l) and (m) above (which representations are subject to any written reports and materials provided by Seller to Buyer and any reports prepared on behalf of Buyer), THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGESBuyer acknowledges and agrees that it has conducted engineering and environmental inspections and investigations of the Property to its satisfaction and Buyer is satisfied with the engineering and environmental conditions of the Property and Buyer will not claim any environmental or engineering defect, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSEfault or deficiency as a basis not to close the purchase or to seek a reduction of the Purchase Price.
Appears in 1 contract
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to each and every aspect of the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) and that Buyer is acquiring the Interests and the Property based exclusively on completely satisfied with such independent investigation and Sellers’ representations and warranties (but the foregoing will not constitute a waiver of any breach of representation or warranty set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or Section 4.1 unless such breach is disclosed in the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of the Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance of the Property with all Environmental Laws, including environmental assessment reports;
(vii) any easements and/or access rights affecting the Property;
(viii) the Existing Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto to pay the rent;
(ixvii) the Existing Contracts and any other documents or agreements of significance affecting the Property;
(xviii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of the Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xix) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to to, the Property and the InterestsProperty.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvalapproval include:
(i) to the extent in the possession of Seller, a copy of a Survey of the Real Property;
(ii) [intentionally deleted];
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for the Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) to the extent in the possession of Seller or Seller's property manager, reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Real Property and the compliance of the Real Property with all environmental laws, including recent Phase I (and, in some cases, Phase II) environmental surveys; and
(vii) to the extent in the possession of Seller or Seller's property managers, copies of (i) the bills issued for the most recent year for the Real Property for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any Governmental Authority ("Real Estate Taxes") and personal property taxes and (ii) all notices or documents for any assessments or bonds relating to the Real Property.
(c) Buyer acknowledges and agrees that (i) it is acquiring the Property based exclusively on has completed its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and has obtained, reviewed and approved a Title Commitment for the express Property, (ii) it is acquiring the Property based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Property or the Due Diligence Materials. Buyer has approved each and every aspect of the Property. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been is being given the full opportunity prior to during the Effective Date Due Diligence Period to inspect and investigate all aspects relating to the each and every aspect of each Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth hereinappropriate, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Additional Deposit will conclusively evidence Buyer's complete satisfaction with such independent investigation (but will not constitute a waiver of any breach of representation or warranty set forth in Section 4.1 unless such breach is disclosed in the Due Diligence Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the such Property;
(ii) all matters relating to governmental and other legal requirements with respect to the such Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the each Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the each Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements or the Leasehold Improvements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of the such Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting such Real Property;
(vi) the Leases with respect to such Real Property and all matters in connection therewith, including, without limitation, the ability of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of significance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of such Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a Survey of each Real Property;
(ii) a Rent Roll for each Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for each Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the each Real Property and the compliance of the such Real Property with all Environmental Lawsenvironmental laws, including recent Phase I (and, in some cases, Phase II) environmental assessment reportssurveys;
(vii) to the extent in the possession of Seller or Seller's property managers, copies of (i) the bills issued for the most recent year for each Real Property for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any easements and/or access rights affecting the Governmental Authority ("Real Estate Taxes") and personal property taxes and (ii) all notices or documents for any assessments or bonds relating to each Real Property;; and
(viii) the Existing Leases with respect to the Real Property and all matters in connection therewithground lease creating each Leasehold Estate (each, including the ability of the Tenants thereto to pay the rent;
(ix) the Existing Contracts and any other documents or agreements of significance affecting the Property;
(x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvala "Ground Lease").
(c) Buyer acknowledges and agrees that (i) on or prior to the expiration of the Due Diligence Period it is acquiring the Property based exclusively on will have completed its independent investigation of the Interests, the Subsidiaries, the Property Properties and the Due Diligence Materials and shall have obtained, reviewed and approved a Title Commitment for each Property, (ii) it is acquiring the express Properties based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right after the expiration of Sellers set forth hereinthe Due Diligence Period to terminate this Agreement based on any further investigations of the Properties or the Due Diligence Materials. The failure of Buyer to send a Termination Notice prior to the expiration of the Due Diligence Period shall conclusively constitute Buyer's approval of each and every aspect of such Properties. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to each and every aspect of the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) and that Buyer is acquiring the Interests and the Property based exclusively on completely satisfied with such independent investigation and Sellers’ representations and warranties (but the foregoing will not constitute a waiver of any breach of representation or warranty set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or Section 4.1 unless such breach is disclosed in the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of the Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance of the Property with all Environmental Laws, including environmental assessment reports;
(vii) any easements and/or access rights affecting the Property;
(viii) the Existing Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto to pay the rent;
(ixvii) the Existing Contracts and any other documents or agreements of significance affecting the such Property;
(xviii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of the Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xix) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Intereststo, such Property.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvalapproval include:
(i) to the extent in the possession of Seller, a copy of a Survey of the Real Property;
(ii) a Rent Roll for the Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for the Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) to the extent in the possession of Seller or Seller's property manager, reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Real Property and the compliance of the Real Property with all environmental laws, including recent Phase I (and, in some cases, Phase II) environmental surveys; and
(vii) to the extent in the possession of Seller or Seller's property manager, copies of (i) the bills issued for the most recent year for the Real Property for all real estate taxes and assessments, water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any Governmental Authority ("Real Estate Taxes") and personal property taxes and (ii) all notices or documents for any assessments or bonds relating to the Real Property.
(c) Buyer acknowledges and agrees that (i) it is acquiring the Property based exclusively on has completed its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and shall have obtained, reviewed and approved a Title Commitment for the express Property, (ii) it is acquiring the Property based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Property or the Due Diligence Materials. Borrower has approved each and every aspect of such Property. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby acknowledges that it has been given by the full opportunity prior expiration of the Review Period, unless Buyer notifies Seller otherwise in writing (in which case Buyer shall be entitled to the Effective Date exercise its rights under Section 3.1 above to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in terminate this Agreement, (i) Buyer is acquiring the Interests but, for purposes of Section 5.1 above, such notice and the Property based exclusively on circumstances underlying such independent investigation and Sellers’ representations and warranties notice shall not constitute a default by Seller that entitles Buyer to reimbursement of any of the expenses set forth herein, and (ii) except as provided in this Agreementtherein), Buyer shall have no been given, or waived its right to, a full opportunity to terminate this Agreement based upon additional information inspect and investigate, and shall have reviewed as thoroughly as it may discover as a result of further investigations of the Interestsdesires, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests and the Property. Such independent investigation by Buyer prior to the Effective Date included the following items, which Buyer examined and investigated to its full satisfaction all factseither independently or through agents of Buyer’s choosing, circumstances and including, without limitation: All matters relating to the Interests and the Propertytitle, or otherwise relevant to its purchase of the foregoing, including:
(i) together with all matters relating to title to the Property;
(ii) all matters relating to governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions and building codes;
(iii) all zoning, land use, water use, building, environmental ; The physical condition and other statutes, rules, or regulations applicable to aspects of the Property;
(iv) all documents, corporate or otherwiseincluding, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Propertywithout limitation, including the interior, the exterior, the square footage of within the Improvementsimprovements on the Real Property and within each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of the Real Property;
(vi) reports, studiesincluding, assessmentswithout limitation, investigations and other materials related to an examination for the presence or absence of Hazardous Materials atMaterials, on which shall be performed or under the Property and the compliance of the Property with all Environmental Laws, including environmental assessment reports;
(vii) any arranged by Buyer at Buyer’s sole expense; Any easements and/or access rights affecting the Property;
(viii) the Existing ; The Leases with respect to the Real Property and all matters in connection therewith, including including, without limitation, the ability of the Tenants thereto to pay rent, the rent;
(ix) tenant improvements performed or to be performed and the Existing Contracts construction contract relating thereto; The Contracts, the Licenses and Permits and any other documents or agreements of significance affecting the Property;
(x) all matters relating to the income ; and operating or capital expenses of the Property and all other financial matters; and
(xi) all All other matters of material significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval.
(c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth herein.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, (I) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions delivered to Buyer by Seller in accordance with Article 3 of any party with respect this Agreement, or which Buyer otherwise reasonably considers to be relevant to the negotiation and/or execution acquisition of any lease or contract with respect to the Property. THAT, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKINGTHE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property. Buyer acknowledges and agrees that it has had the opportunity to conduct such inspections, investigations and other independent examinations of the Property and related matters, including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller or of any member, manager, officer, director, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller, except as expressly provided in this Agreement, will not be deemed to have represented or warranted the completeness, adequacy, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges that Seller has delegated the day-to-day management and operation of the Property to a third party manager of the Property. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property, “AS IS, WHERE IS,” with all faults, except as otherwise expressly provided in this Agreement. Buyer acknowledges and agrees that, except as otherwise expressly provided in this Agreement, Buyer and Seller have specifically bargained for the assumption by Buyer of all responsibility to investigate the Property, Laws and Regulations, Leases, Contracts and Permitted Exceptions and of all risk of adverse conditions and have structured the Purchase Price and other terms of this Agreement in consideration thereof. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property, by Seller, any member of Seller, any broker or other agent of Seller or any third party. Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property, except as otherwise expressly provided in this Agreement. BUYER, WITH BUYER’S COUNSEL, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO FULLY REVIEWED THE TRUTHDISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, ACCURACY OR COMPLETENESS OF AND UNDERSTANDS THE DUE DILIGENCE MATERIALS SIGNIFICANCE AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS EFFECT THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THATTHAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, EXCEPT AS EXPRESSLY AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER THIS AGREEMENT. THE TERMS AND CONDITIONS OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SUBSECTION 7.3 WILL EXPRESSLY SURVIVE THE CLOSING, OR, IF WILL NOT MERGE WITH THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART PROVISIONS OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSECLOSING DOCUMENTS.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Apple REIT Eight, Inc.)
Buyer’s Independent Investigation. (a) Buyer hereby Buyer, for itself and any successors or assigns (including any Permitted Assignees), acknowledges and agrees that it has been given the full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the each and every aspect of each Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s 's choosing, as Buyer considered considers necessary or appropriate (includingappropriate, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) and that Buyer is acquiring the Interests and the Property based exclusively on completely satisfied with such independent investigation and Sellers’ representations and warranties (but the foregoing will not constitute a waiver of any breach of representation or warranty set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or Section 4.1 unless such breach is disclosed in the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit Materials or is otherwise known by Buyer shall conclusively constitute Buyer’s approval of each and/or any Permitted Assignee before the Closing Date and every aspect of Buyer and/or such Permitted Assignee(s) elect to proceed with the Interests and the PropertyClosing). Such independent investigation by Buyer prior to the Effective Date included the following itemsmay include, which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, or otherwise relevant to its purchase of the foregoing, includingwithout limitation:
(i) all matters relating to title to the such Property;
(ii) all matters relating to governmental and other legal requirements with respect to the such Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the each Real Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the each Real Property, including including, without limitation, the interior, the exterior, the square footage of the ImprovementsImprovements and of each tenant space therein, the structure, the roof, the paving, the utilities, and all other physical, structural physical and functional aspects of such Real Property, including the presence or absence of Hazardous Materials;
(v) any easements and/or access rights affecting such Real Property;
(vi) the Leases with respect to such Real Property and all matters in connection therewith, including, without limitation, the ability of the Tenants thereto to pay the rent;
(vii) the Contracts and any other documents or agreements of significance affecting such Property;
(viii) all matters that would be revealed by an ALTA as-built survey (a "Survey"), a physical inspection or an environmental site assessment of such Real Property;
(ix) all matters relating to the income and operating or capital expenses of the Properties and all other financial matters; and
(x) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to, such Property.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval include:
(i) to the extent in the possession of Seller, a copy of a Survey of each Real Property;
(ii) a Rent Roll for each Real Property, listing for any Tenant the name, rent, amount of deposit and prepaid rent, if any, and lease term and copies of the Existing Leases;
(iii) the Schedule of Contracts;
(iv) operating, income and expense statements for each Real Property for the period in 1997 ending September 30, 1997;
(v) copies of all Licenses and Permits in the possession of Seller;
(vi) to the extent in the possession of Seller or Seller's property manager, reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the each Real Property and the compliance of the such Real Property with all Environmental Lawsenvironmental laws, including recent Phase I (and, in some cases, Phase II) environmental assessment reports;surveys; and
(vii) any easements and/or access rights affecting to the Property;
extent in the possession of Seller or Seller's property managers, copies of (viiii) the Existing Leases with respect to bills issued for the most recent year for each Real Property for all real estate taxes and all matters in connection therewithassessments, including the ability of the Tenants thereto to pay the rent;
water rates, water meter charges, sewer rates, sewer charges, and similar matters, imposed by any Governmental Authority (ix"Real Estate Taxes") the Existing Contracts and any other documents or agreements of significance affecting the Property;
personal property taxes and (xii) all matters notices or documents for any assessments or bonds relating to the income and operating or capital expenses of the Property and all other financial matters; and
(xi) all other matters of significance affecting, or otherwise deemed relevant by Buyer with respect to the Property and the Interests.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approvaleach Real Property.
(c) Buyer acknowledges and agrees that (i) it is acquiring the Property based exclusively on has completed its independent investigation of the Interests, the Subsidiaries, the Property Properties and the Due Diligence Materials and has obtained, reviewed and approved a Title Commitment for each Property, (ii) it is acquiring the express Properties based on such independent investigation and subject to all information disclosed in the Due Diligence Materials (and also in reliance on Seller's representations and warranties contained herein) and (iii) Buyer shall have no right to terminate this Agreement based on any further investigations of Sellers set forth hereinthe Properties or the Due Diligence Materials. Buyer has approved of each and every aspect of such Properties. The preceding sentence is not intended to relieve, and shall not relieve, Seller from any of its obligations under Section 4.1.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, THAT (Ii) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, SELLERS SELLER SHALL SELL AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN THE EACH PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED “"AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, AS TO ANY MATTER, CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurable, (ii) the dimensions or lot size of the Property or the square footage of the Improvements thereon or of any tenant space therein, (iii) the development or income potential, or rights of or relating to, the Property, or the Property’ use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (iv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (v) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above or about the Property or any adjoining or neighboring property, (viii) the quality of any labor and materials used in any portion of the Property, (ix) the condition of title to the Interests or the Property, (x) the Leases, Contracts or any other agreements affecting the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or (xi) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENT.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE."
Appears in 1 contract
Samples: Purchase and Sale Agreement (Brandywine Realty Trust)
Buyer’s Independent Investigation. (a) Buyer hereby acknowledges and agrees that it has been given the a full opportunity prior to the Effective Date to inspect and investigate all aspects relating to the Property, the Interests and the Due Diligence Materials, either independently or through agents, representatives or experts of Buyer’s choosing, as Buyer considered necessary or appropriate (including, without limitation, those listed below). Except as otherwise expressly provided in this Agreement, (i) Buyer is acquiring the Interests and the Property based exclusively on such independent investigation and Sellers’ representations and warranties set forth herein, and (ii) except as provided in this Agreement, Buyer shall have no right to terminate this Agreement based upon additional information it may discover as a result of further investigations of the Interests, the Property or the Due Diligence Materials. Subject to the terms and conditions of this Agreement, the funding of the Deposit by Buyer shall conclusively constitute Buyer’s approval of each and every aspect of the Interests and the Property. Such independent investigation by Buyer prior to Property (as it exists as of the Effective Date included the following itemsDate), which Buyer examined and investigated to its full satisfaction all facts, circumstances and matters relating to the Interests and the Property, either independently or otherwise relevant to its purchase through agents of the foregoingBuyer’s choosing, including, without limitation:
(i) all matters relating to title to the Property;items described on Schedule 2 hereto (the “Due Diligence Documentation”). Buyer hereby acknowledges receipt of the Due Diligence Documentation.
(ii) all matters relating to title, together with all governmental and other legal requirements with respect to the Property, such as Taxestaxes, assessments, zoning, use permit requirements, water use, sewage, concessions requirements and building codes;,
(iii) all zoning, land use, water use, building, environmental and other statutes, rules, or regulations applicable to the Property;
(iv) all documents, corporate or otherwise, and matters relating to the Subsidiaries;
(v) the physical condition of the Real Property, including the interior, the exterior, the square footage . Such examination of the Improvements, the structure, the roof, the paving, the utilities, and all other physical, structural and functional aspects of the Real Property;
(vi) reports, studies, assessments, investigations and other materials related to the presence of Hazardous Materials at, on or under the Property and the compliance physical condition of the Property with all Environmental Lawsshall include an examination for the presence or absence of hazardous or toxic materials, including environmental assessment reports;substances or wastes (collectively, “Hazardous Materials”), which shall be performed or arranged by Buyer at Buyer’s sole expense,
(viiiv) any easements and/or access rights affecting the Property;,
(viiiv) the Existing Leases with respect to the Real Property service contracts and all matters in connection therewith, including the ability of the Tenants thereto to pay the rent;
(ix) the Existing Contracts and any other documents contracts or agreements of significance affecting the Property;
(x) all matters relating to the income and operating or capital expenses of the Property and all other financial matters; (hereinafter collectively referred to as “Contracts”), and
(xivi) all other matters of material significance affecting, or otherwise deemed relevant by Buyer with respect to affecting the Property and the InterestsProperty.
(b) The Due Diligence Materials heretofore delivered or made available to Buyer for its review and approval.
(c) Buyer acknowledges and agrees that it is acquiring the Property based exclusively on its independent investigation of the Interests, the Subsidiaries, the Property and the Due Diligence Materials and the express representations and warranties of Sellers set forth herein.
(d) BUYER SPECIFICALLY REPRESENTS, ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE PROVISIONS HEREOF, (I) EXCEPT AS EXPRESSLY SET FORTH PROVIDED IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED SECTION 2.2 ABOVE AND DELIVERED AT CLOSINGIN SECTION 5.1 BELOW, SELLERS SHALL SELL SELLER IS SELLING AND BUYER SHALL PURCHASE THE INTERESTS WHICH SHALL INCLUDE THE SELLERS’ INTERESTS IN IS PURCHASING THE PROPERTY WHICH BUYER ACKNOWLEDGES IS BEING PURCHASED ON AN “AS IS, WHERE IS AND WITH ALL FAULTS,” (II) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED BASIS AND DELIVERED AT CLOSING, THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, STATUTORY FROM SELLER, ITS AGENTS, OR OTHERWISE, FROM ANY SELLER OR SUBSIDIARY, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF ANY SELLER OR SUBSIDIARY, BROKERS AS TO ANY MATTER, MATTERS CONCERNING THE INTERESTS AND THE PROPERTY, OR SET FORTH, CONTAINED OR ADDRESSED IN THE DUE DILIGENCE MATERIALS (INCLUDING, WITHOUT LIMITATION, THE COMPLETENESS THEREOF), INCLUDING: (i) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or and physical condition of the Property or any aspect or portion thereof, including structural elements, foundation, roof, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage, and utility systems, facilities and appliances, soils, geology and groundwater, or whether the Property lie within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, and/or whether and to what extent any of such risks or any other risks or losses resulting therefrom are or may continue to be insurableProperty, (ii) the dimensions or lot size quality, nature, adequacy, and physical condition of the Property or the square footage of the Improvements thereon or of soils, geology and any tenant space thereingroundwater, (iii) the development or income potentialexistence, or rights quality, nature, adequacy and physical condition of or relating to, utilities serving the Property, or (iv) the development potential of the Property’ , and the Property’s use, habitability, merchantability, or fitness, or the suitability, value or adequacy of the Property for any particular purpose, (ivv) the zoning or other legal status of the Property or any other public or private restrictions on the use of the Property, (vvi) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any Governmental Authority governmental or quasi-governmental entity or of any other person or entity, (vi) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use or development of the Property, (vii) the presence or absence of Hazardous Materials on, in, under, above under or about the Property or any the adjoining or neighboring property, (viii) the quality condition of any labor and materials used in any portion of title to the Property, (ix) the condition of title to the Interests or the Property, Contracts (x) the Leases, Contracts or any other agreements affecting economics of the operation of the Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Property, or and (xi) the economics oftype, quality or the income and expenses, revenue nature of any use or expense projections or other financial matters, relating to, the operation of the Ownership of the Interests or the Property or business conducted on any portion thereof. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT: (1) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY DOCUMENTS EXECUTED AND DELIVERED AT CLOSING, BUYER IS NOT RELYING ON ANY REPRESENTATION OR WARRANTY OF SELLERS, NOR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SELLERS, WHETHER IMPLIED, PRESUMED OR EXPRESSLY PROVIDED AT LAW OR OTHERWISE, ARISING BY VIRTUE OF ANY STATUTE, COMMON LAW OR OTHER LEGALLY BINDING RIGHT OR REMEDY IN FAVOR OF BUYER; AND (2) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NO SELLER OR SELLER PARTY IS MAKING, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF THE DUE DILIGENCE MATERIALS AND BUYER IS NOT RELYING IN ANY WAY UPON THE DUE DILIGENCE MATERIALS OR THE TRUTH, ACCURACY OR COMPLETENESS THEREOF. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, NO SELLER IS UNDER ANY DUTY TO MAKE ANY INQUIRY REGARDING ANY MATTER THAT MAY OR MAY NOT BE KNOWN TO SUCH SELLER OR ANY PARTNER, MEMBER, OFFICER, EMPLOYEE, ATTORNEY, AGENT OR BROKER OF SUCH SELLER. THIS SECTION 4.4(D) SHALL SURVIVE THE CLOSING, OR, IF THE CLOSING DOES NOT OCCUR, BEYOND THE TERMINATION OF THIS AGREEMENTneighboring property.
(e) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THERE IS NO OBLIGATION ON THE PART OF ANY SELLER TO MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL AT BUYER’S SOLE COST AND EXPENSE.
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