Buyer’s Independent Investigation. Buyer has been given, or will have before the end of the Due Diligence Period, a full opportunity to inspect and investigate each and every aspect of the Property Buyer deems necessary and proper to evaluate the transactions contemplated herein, either independently or through agents of Buyer’s choosing, including, without limitation: (a) All matters relating to title and the Property, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements, and building codes; (b) The physical condition and aspects of the Property, including, without limitation, the interior, the exterior, the square footage within the improvements on the Real Property and within each tenant space therein, the structure, the paving, the utilities, and all other physical and functional aspects of the Property, including, without limitation, an examination for the presence or absence of Hazardous Materials, which shall be performed or arranged by Buyer at Buyer’s sole expense; (c) Any easements and/or access rights affecting the Property; (d) The Leases and all matters in connection therewith, including, without limitation, the ability of the Tenants to pay Rent; (e) The Contracts, the Licenses and Permits, and any other material documents or agreements affecting the Property; and (f) All other matters of material significance affecting the Property or delivered or made available to Buyer by Seller in accordance with Article 3 of this Agreement. (g) THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER, AND BUYER HAS CONDUCTED OR WILL CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 6.1 AND SECTION 9.6 OF THIS AGREEMENT AND IN THE ANCILLARY AGREEMENTS (THE “EXPRESS SELLER REPRESENTATIONS”), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE OTHER THAN THE EXPRESS SELLER REPRESENTATIONS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION OR WARRANTY WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (D) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (E) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (F) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (G) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY OR ANY PORTION THEREOF WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND
Appears in 2 contracts
Samples: Sale Agreement, Agreement of Sale and Purchase
Buyer’s Independent Investigation. Buyer has been given, or will have before the end of the Due Diligence Period, a full opportunity to inspect and investigate each and every aspect of the Property Buyer deems necessary and proper to evaluate the transactions contemplated herein, either independently or through agents of Buyer’s choosing, including, without limitation:
(a) All matters relating to title and the Property, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements, and building codes;
(b) The physical condition and aspects of the Property, including, without limitation, the interior, the exterior, the square footage within the improvements on the Real Property and within each tenant space therein, the structure, the paving, the utilities, and all other physical and functional aspects of the Property, including, without limitation, an examination for the presence or absence of Hazardous Materials, which shall be performed or arranged by Buyer at Buyer’s sole expense;
(c) Any easements and/or access rights affecting the Property;
(d) The Leases and all matters in connection therewith, including, without limitation, the ability of the Tenants to pay Rent;
(e) The Contracts, the Licenses and Permits, and any other material documents or agreements affecting the Property; and
(f) All other matters of material significance affecting the Property or delivered or made available to Buyer by Seller in accordance with Article 3 of this Agreement.
(g) THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER PURCHASED ASSETS ARE BEING CONVEYED AAS IS,@ AWHERE IS@ AND BUYER, THIS AGREEMENT REFLECTS AWITH ALL FAULTS@ ON THE MUTUAL AGREEMENT OF SELLER DATE HEREOF AND BUYER, AND BUYER HAS CONDUCTED OR WILL CONDUCT ITS OWN INDEPENDENT EXAMINATION OF ON THE PROPERTYCLOSING DATE. OTHER THAN ANY EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH CONTAINED IN SECTION 6.1 AND SECTION 9.6 ARTICLE IV OF THIS AGREEMENT AND IN THE ANCILLARY AGREEMENTS (THE “AGREEMENT, SELLER MAKES NO OTHER EXPRESS SELLER REPRESENTATIONS”), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY IMPLIED REPRESENTATION OR WARRANTY WARRANTY, INCLUDING REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION OF SELLER THE PURCHASED ASSETS, THEIR CONTENTS, THEIR FITNESS FOR ANY INTENDED USE, THE INCOME DERIVED OR ANY OF SELLER’S AGENTS POTENTIALLY TO BE DERIVED FROM THE PURCHASED ASSETS OR REPRESENTATIVESTHE BUSINESS, AND OR THE EXPENSES INCURRED OR POTENTIALLY TO BE INCURRED IN CONNECTION WITH THE PURCHASED ASSETS OR THE BUSINESS. BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE OTHER THAN BUYER IS ACQUIRING THE EXPRESS SELLER REPRESENTATIONS, SELLER SPECIFICALLY DISCLAIMS, PURCHASED ASSETS BASED SOLELY UPON BUYER'S OWN INDEPENDENT INVESTIGATIONS AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION OR WARRANTY WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY INSPECTIONS OF THE PROPERTYPURCHASED ASSETS AND NOT IN RELIANCE UPON ANY INFORMATION PROVIDED BY SELLER, ITS AFFILIATES, EMPLOYEES AND/OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (D) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (E) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (F) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (G) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY OR ANY PORTION THEREOF WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THATAGENTS, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT. BUYER ACKNOWLEDGES THAT SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION ANDPURCHASED ASSETS OR SELLER'S TITLE THERETO.
Appears in 2 contracts
Buyer’s Independent Investigation. Buyer has been given, or will have be given before the end of the Due Diligence Period, a full opportunity to inspect and investigate each and every aspect of the Property Buyer deems necessary and proper to evaluate the transactions contemplated hereinProperty, either independently or through agents of Buyer’s choosing, including, without limitation:
(a) All matters relating to title and the Propertytitle, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements, and building codes;
(b) The physical condition and aspects of the Property, including, without limitation, including the interior, the exterior, the square footage within the improvements on the Real Property Land and within each tenant space therein, the structure, the paving, the utilities, and all other physical and functional aspects of the Property, including, without limitation, including an examination for the presence or absence of Hazardous Materials, which shall be performed or arranged by Buyer at Buyer’s sole expense;
(c) Any easements and/or access rights affecting the Property;
(d) The Leases and all matters in connection therewith, including, without limitation, the ability of the Tenants to pay RentDue Diligence Items;
(e) The Contracts, the Licenses and Permits, and any other material documents or agreements affecting the Property; and
(f) All other matters of material significance affecting the Property or delivered to or made available to Buyer by Seller in accordance with Article 3 of this Agreement.
(g) , or which Buyer otherwise reasonably considers to be relevant to the acquisition of the Property. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER, AND BUYER HAS OR PRIOR TO THE CLOSING WILL HAVE CONDUCTED OR WILL CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH THE MATTERS REPRESENTED IN SECTION 6.1 AND HEREOF AS SUCH MAY BE LIMITED BY SECTION 9.6 OF THIS AGREEMENT AND IN THE ANCILLARY AGREEMENTS (THE “EXPRESS SELLER REPRESENTATIONS”)6.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE OTHER THAN MADE. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN SECTION 6 HEREOF OR IN ANY DOCUMENTS DELIVERED TO BUYER AT OR IN CONNECTION WITH THE EXPRESS SELLER REPRESENTATIONSCLOSING, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION REPRESENTATION, WARRANTY OR WARRANTY ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (Aa) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (Bb) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (Cc) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (Dd) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (Ee) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW LATENT OR HEREAFTER EXISTINGPATENT, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (Ff) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (Gg) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY LAND OR ANY PORTION THEREOF THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT OR IN ANY DOCUMENTS DELIVERED TO BUYER AT OR IN CONNECTION WITH THE CLOSING, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION ANDAND 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 will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and related matters, including the physical and environmental conditions thereof, during the Due Diligence Period and will rely upon same and not upon any statements of Seller or of any member, manager, officer, director, agent or attorney of Seller, other than the matters represented in Section 6.1 hereof as such may be limited by Section 6.2 hereof and matters in any documents delivered to Buyer at or in connection with the Closing. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, adequacy, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer, other than the matters represented in Section 6.1 hereof as such may be limited by Section 6.2 hereof and matters in any documents delivered to Buyer at or in connection with the Closing. Subject to the foregoing, upon Closing, Buyer will assume the risk that adverse matters, including adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. 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. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property, by Seller, any agent of Seller or any third party. Seller is 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. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 7.3 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Eagle Hospitality Properties Trust, Inc.)
Buyer’s Independent Investigation. (a) Buyer acknowledges and agrees that it has been given, given or will have be given before the end of the Due Diligence Contingency Period, a full opportunity to inspect and investigate each and every aspect of the Property Buyer deems necessary and proper to evaluate the transactions contemplated hereinProperty, either independently or through agents of Buyer’s 's choosing, including, without limitation:
(a1) All matters relating to title and the PropertyALL MATTERS RELATING TO TITLE, together with all governmental and other legal requirements such as taxesTOGETHER WITH ALL GOVERNMENTAL AND OTHER LEGAL REQUIREMENTS SUCH AS TAXES, assessmentsASSESSMENTS, zoningZONING, use permit requirementsUSE PERMIT REQUIREMENTS AND BUILDING CODES.
(2) THE PHYSICAL CONDITION AND ASPECTS OF THE PROPERTY, and building codes;INCLUDING, WITHOUT LIMITATION, THE INTERIOR, THE EXTERIOR, THE SQUARE FOOTAGE WITHIN THE IMPROVEMENTS ON THE REAL PROPERTY AND WITHIN EACH TENANT SPACE THEREIN, THE STRUCTURE, SEISMIC ASPECTS OF THE PROPERTY, THE PAVING, THE UTILITIES, AND ALL OTHER PHYSICAL AND FUNCTIONAL ASPECTS OF THE PROPERTY. SUCH EXAMINATION OF THE PHYSICAL CONDITION OF THE PROPERTY SHALL INCLUDE AN EXAMINATION FOR THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS, AS DEFINED BELOW, WHICH SHALL BE PERFORMED OR ARRANGED BY BUYER AT BUYER'S SOLE EXPENSE. FOR PURPOSES OF THIS AGREEMENT, "HAZARDOUS MATERIALS" SHALL MEAN INFLAMMABLE EXPLOSIVES, RADIOACTIVE MATERIALS, ASBESTOS, POLYCHLORINATED BIPHENYLS, LEAD, LEAD-BASED PAINT, UNDER AND/OR ABOVE GROUND TANKS, HAZARDOUS MATERIALS, HAZARDOUS WASTES, HAZARDOUS SUBSTANCES, OIL, OR RELATED MATERIALS, WHICH ARE LISTED OR REGULATED IN THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED (42 U.S.C. SECTIONS 6901, ET SEQ.), THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C. SECTION 6901, ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. SECTION 1251, ET SEQ.), THE SAFE DRINKING WATER ACT (14 U.S.C. SECTION 1401, ET SEQ.), THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. SECTION 1801, ET SEQ.), THE AND TOXIC SUBSTANCE CONTROL ACT (15 U.S.C. SECTION 2601, ET SEQ.), THE ARIZONA ENVIRONMENTAL QUALITY ACT, A.R.S. SECTIONS 49-201, ET SEQ.; THE ARIZONA "STATE SUPERFUND" PROVISIONS, A.R.S. SECTIONS 49-281, ET SEQ.; THE ARIZONA SOLID WASTE MANAGEMENT PROVISIONS, A.R.S. SECTIONS 49-701, ET SEQ.; THE ARIZONA HAZARDOUS WASTE MANAGEMENT ACT, A.R.S. SECTIONS 49-921, ET SEQ.; AND THE ARIZONA UNDERGROUND STORAGE TANK PROVISIONS, A.R.S. SECTIONS 49-1001, AND ANY OTHER APPLICABLE FEDERAL, STATE OR LOCAL LAWS.
(3) ANY EASEMENTS AND/OR ACCESS RIGHTS AFFECTING THE PROPERTY.
(4) THE LEASES AND ALL MATTERS IN CONNECTION THEREWITH, INCLUDING, WITHOUT LIMITATION, THE ABILITY OF THE TENANTS TO PAY THE RENT AND THE ECONOMIC VIABILITY OF THE TENANTS.
(5) THE SERVICE CONTRACTS AND ANY OTHER DOCUMENTS OR AGREEMENTS OF SIGNIFICANCE AFFECTING THE PROPERTY.
(6) ALL OTHER MATTERS OF MATERIAL SIGNIFICANCE AFFECTING THE PROPERTY.
(b) The BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS PURCHASING THE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND THAT BUYER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS, OR BROKERS AS TO ANY MATTERS CONCERNING THE PROPERTY EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1 ABOVE, INCLUDING WITHOUT LIMITATION: (i) the quality, nature, adequacy and physical condition and aspects of the Property, including, without limitationbut not limited to, the interiorstructural elements, seismic aspects of the exteriorProperty, 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 structurequality, the pavingnature, the utilitiesadequacy, and all other physical condition of soils, geology and functional aspects any groundwater, (iii) the existence, quality, nature, adequacy and physical condition of utilities serving the Property, (iv) the development potential of the Property, includingand the Property's use, without limitationhabitability, an examination merchantability, or fitness, suitability, value or adequacy of the Property for any particular purpose, (v) the zoning or other legal status of the Property or any other public or private restrictions on use of the Property, (vi) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity, (vii) the presence or absence of Hazardous MaterialsMaterials on, which shall be performed under or arranged by Buyer at Buyer’s sole expense;
about the Property or the adjoining or neighboring property, (cviii) Any easements and/or access rights affecting the quality of any labor and materials used in any improvements on the Real Property, (ix) the condition of title to the Property;
, (dx) The Leases and all matters in connection therewiththe leases, includingservice contracts, without limitation, the ability of the Tenants to pay Rent;
(e) The Contracts, the Licenses and Permits, and any or other material documents or agreements affecting the Property and (xi) the economics of the operation of the Property; and
(f) All other matters of material significance affecting the Property or delivered or made available to Buyer by Seller in accordance with Article 3 of this Agreement.
(g) THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER, AND BUYER HAS CONDUCTED OR WILL CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY. OTHER THAN ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 6.1 AND SECTION 9.6 OF THIS AGREEMENT AND IN THE ANCILLARY AGREEMENTS (THE “EXPRESS SELLER REPRESENTATIONS”), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE OTHER THAN THE EXPRESS SELLER REPRESENTATIONS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION OR WARRANTY WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (D) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (E) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (F) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (G) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY OR ANY PORTION THEREOF WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION AND
Appears in 1 contract
Samples: Agreement of Purchase and Sale (American Industrial Properties Reit Inc)
Buyer’s Independent Investigation. Buyer has been given, or will have before the end of the Due Diligence Period, a full opportunity to inspect and investigate each and every aspect of the Property Buyer deems necessary and proper to evaluate the transactions contemplated herein, either independently or through agents of Buyer’s choosing, including, without limitation:
(a) All matters relating to title and the Property, together with all governmental and other legal requirements such as taxes, assessments, zoning, use permit requirements, and building codes;
(b) The physical condition and aspects of the Property, including, without limitation, the interior, the exterior, the square footage within the improvements on the Real Property and within each tenant space therein, the structure, the paving, the utilities, and all other physical and functional aspects of the Property, including, without limitation, an examination for the presence or absence of Hazardous Materials, which shall be performed or arranged by Buyer at Buyer’s sole expense;
(c) Any easements and/or access rights affecting the Property;
(d) The Leases and all matters in connection therewith, including, without limitation, the ability of the Tenants to pay Rent;
(e) The Contracts, the Licenses and Permits, and any other material documents or agreements affecting the Property; and
(f) All other matters of material significance affecting the Property or delivered or made available to Buyer by Seller in accordance with Article 3 of this Agreement.
(g) THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND BUYER, AND BUYER HAS CONDUCTED CONDUCTED, OR WILL CONDUCT CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTYPROPERTY AND ANY RELATED DOCUMENTS. OTHER THAN ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH THE MATTERS REPRESENTED IN SECTION 6.1 AND 5.1 HEREOF AS SUCH MAY BE LIMITED BY SECTION 9.6 OF THIS AGREEMENT AND IN THE ANCILLARY AGREEMENTS (THE “EXPRESS SELLER REPRESENTATIONS”)5.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE OTHER THAN THE EXPRESS SELLER REPRESENTATIONS, MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION REPRESENTATION, WARRANTY OR WARRANTY ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (Aa) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (Bb) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (Cc) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (Dd) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (Ee) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (Ff) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (Gg) THE COMPLIANCE OR LACK THEREOF OF THE PROPERTY OR ANY PORTION THEREOF THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, AND BUYER HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING, IT BEING THE EXPRESS INTENTION OF SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS PRESENT CONDITION ANDAND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer acknowledges and agrees that it has had and will have 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 prior to the Closing and, except as set forth in Section 5.1 (as limited by Section 5.2), Buyer will rely upon same and not upon any statements of Seller or of any officer, director, employee, agent or attorney of Seller. 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 and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property, by Seller, any agent of Seller or any third party. Seller is 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 AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SUBSECTION 6.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Churchill Downs Inc)
