Condition of Project. (a) Except as otherwise expressly provided in this Agreement, Buyer shall accept the Project at the Close of Escrow in the "as is", "where is" condition, with all faults. Buyer agrees that, except as expressly set forth herein, Seller shall not be liable for any construction, latent or patent defects in the Project, and shall not be bound in any manner whatsoever by any guarantees, promises, projections, operating expenses, set-ups or other information pertaining to the Project made, furnished or claimed to have been made or furnished by Seller or any other person or entity, including, without limitation, Seller’s Broker (including without limitation any information contained in the marketing package for the Property prepared by Seller’s Broker), or any partner, member, manager, shareholder, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker, whether verbally or in writing. Buyer acknowledges that neither Seller nor any of the employees, agents or attorneys of Seller has made any verbal or written representations or warranties whatsoever to Buyer, whether express, implied, statutory, or by operation of law, except as expressly set forth in this Agreement and, in particular, that no such representations and warranties have been made with respect to the physical or environmental condition or operation of the Project, the layout or square footage of the Project, the actual or projected revenue and expenses of the Project or any of the Leases, zoning, environmental, and other laws, regulations and rules applicable to the Project, or the compliance of the Project therewith, the quantity, quality or condition of the articles of personal property and fixtures included in the transactions contemplated hereby, the use or occupancy of the Project or any part thereof or any other matter or thing affecting or relating to the Project or the transactions contemplated hereby, except as specifically set forth in this Agreement. Buyer has not relied and is not relying upon any representations or warranties, other than Seller's Representations, or upon any statements made in any informational materials with respect to the Project provided by Seller or any other person or entity, including Seller’s Broker (including without limitation any information contained in the marketing package for the Property prepared by Seller’s Broker)or any shareholder, member, manager, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker. Without limitation of the foregoing, Buyer specifically acknowledges and agrees that it has assumed the risk of changes in the condition of the Project between the Opening of Escrow and the Close of Escrow and no adverse change in such condition shall grant Buyer any right to terminate this Agreement or to obtain any damages against Seller except as otherwise provided herein. IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, AS TO THE QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY COMPONENT THEREOF, AND THE PROPERTY AND EACH COMPONENT THEREOF ARE SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS AGREEMENT, BUYER AFFIRMS AND AGREES THAT (A) BUYER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY OR ANY COMPONENT THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE PROPERTY OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, (C) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY OR ANY COMPONENT THEREOF, (D) BUYER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND EACH COMPONENT THEREOF AND HAS DETERMINED TO PURCHASE THE PROPERTY AND EACH COMPONENT THEREOF BASED ON SUCH INSPECTION, AND (E) UPON CLOSE OF ESCROW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER, ON THE CLOSING DATE, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED, AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION IN TORT, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL OR ENVIRONMENTAL CONDITIONS, AND/OR VIOLATIONS OF ANY APPLICABLE LAWS. (b) Without limiting the generality of the provisions of Paragraph 16(a) above, Buyer specifically acknowledges and agrees as follows: (i) Except for the Seller's Representations, neither Seller nor any other party acting (or purporting to act) on behalf of Seller, has made any (and Seller hereby disclaims any) representation or warranty of any kind of nature concerning any environmental condition existing at the Project, including without limitation (1) air quality, mold or water conditions which may exist at the Project or other matters governed by California's Toxic Mold Protection Act (Cal. Health & Safety Code §§26100-26156; Stats 2001, ch 584), or (2) matters disclosed by the environmental reports included in the Documents and Materials or otherwise made available to Buyer (the matters stated therein being referred to as the "Environmental Disclosed Matters"); (ii) Except as otherwise expressly set forth in this Agreement, Buyer shall take title to the Project subject to any and all environmental conditions thereat (or the presence of any matter or substance relating to any such environmental condition at the Project, including without limitation mold), whether known or unknown, disclosed or undisclosed, including, without limitation, the Environmental Disclosed Matters, and any and all claims and/or liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under the Project, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq., and the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq., or any other law or cause of action (including any federal or state based statutory, regulatory or common law cause of action) related to environmental matters or liability with respect to or affecting the Project (any of the foregoing described in this subparagraph (b)(ii) being referred to as "Environmental Conditions"); and (iii) Except as otherwise expressly set forth in this Agreement, Buyer hereby releases Seller and each of its constituent partners, members, managers, officers, directors, attorneys, lenders, agents, successors and assigns (collectively, the "Seller Exculpated Parties") from any liability of any kind or nature arising with respect to any Environmental Conditions and, specifically, agrees that, if any claim is brought against Buyer arising out of any Environmental Condition, Buyer shall have no claim of any kind or nature against Seller or any Seller Exculpated Party (the parties hereby agreeing that Buyer’s remedies for breach of any Seller’s Representation regarding existing Environmental Conditions shall be as set forth in Section 13). The foregoing shall, however, in no event be deemed an obligation on the part of Buyer to indemnify Seller with respect to any Environmental Disclosed Matters or Environmental Conditions. (c) Section 25359.7 of the California Health and Safety Code requires owners of nonresidential property who know or have reasonable cause to believe that a release of a hazardous material has come to be located on or beneath real property to provide written notice of that condition to a buyer of said real property. Except as otherwise expressly set forth in this Agreement, Buyer acknowledges that Seller has disclosed to Buyer all matters described in the Environmental Disclosed Matters. By Buyer's execution of this Agreement, and except as otherwise expressly set forth in this Agreement, Buyer (i) acknowledges Buyer's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code, (ii) has become or will become fully aware prior to the Close of Escrow of the matters described in the Environmental Disclosed Matters, a copy of which Buyer has received and has reviewed; and (iii) as of Close of Escrow and after receiving advice of Buyer's legal counsel, waives any and all rights or remedies whatsoever, express, implied, statutory or by operation of law, Buyer may have against Seller and arising under Section 25359.7 of the California Health and Safety Code. The provisions of this Paragraph 16(c) shall survive the Closing. (d) Buyer and Seller acknowledge that Seller or Broker is required to disclose if any Project lies within the following natural hazard areas or zones: (i) a special flood hazard area (any type Zone "A" or "V") designated by the Federal Emergency Management Agency (Cal. Gov. Code § 8589.3); (ii) an area of potential flooding shown on a dam failure inundation map designated pursuant to Cal. Gov. Code § 8589.5 (Cal. Gov. Code § 8589.4); (iii) a very high fire hazard severity zone designated pursuant to Cal. Gov. Code § 51178 or 51179 (in which event the owner maintenance obligations of Cal. Gov. Code § 51182 would apply) (Cal. Gov. Code § 51183.5); (iv) a wildland area that may contain substantial forest fire risks and hazards designated pursuant to Cal. Pub. Resources Code § 4125 (in which event (x) the property owner would be subject to the maintenance requirements of Cal. Pub. Resources Code § 4291 and (y) it would not be the state's responsibility to provide fire protection services to any building or structure located within the wildland area except, if applicable, pursuant to Cal. Pub. Resources Code § 4129 or pursuant to a cooperative agreement with a local agency for those purposes pursuant to Cal. Pub. Resources Code § 4142) (Pub. Resources Code § 4136); (v) an earthquake fault zone (Pub. Res. Code § 2621.9); or (vi) a seismic hazard zone (and, if applicable, whether a landslide zone or liquefaction zone) (Pub. Resources Code § 2694). Seller has engaged or will cause the Title Company to engage the services of a natural hazard disclosure expert (in such capacity, the "Natural Hazard Expert") to examine the maps and other information specifically made available to the public by government agencies for the purpose of enabling each of Seller and Seller’s Broker to fulfill its disclosure obligations with respect to the natural hazards referred to in California Civil Code Section 1103(c) and to report the result of its examination to Buyer and Seller in writing. As contemplated in California Civil Code Section 1103.2(b), if an earthquake fault zone, seismic hazard zone, very high fire hazard severity zone or wildland fire area map or accompanying information is not of sufficient accuracy or scale for the Natural Hazard Expert to determine if a particular Project is within the respective natural hazard zone, then for purposes of the disclosure such Project shall be considered to lie within such natural hazard zone. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller and Seller’s Broker from their disclosure obligations referred to herein, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of each of Seller and Seller’s Broker for errors or omissions not within in its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. The obligations of Seller and Seller’s Broker are several (and not joint and not joint and several) and, without limitation, in no event shall Seller have any responsibility for matters not actually known to Seller. THESE HAZARDS MAY LIMIT BUYER'S ABILITY TO DEVELOP THE PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER. THE MAPS ON WHICH THESE DISCLOSURES ARE BASED ON ESTIMATE WHERE NATURAL HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY. (e) BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT, THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, 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 DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16. THE TERMS AND CONDITIONS OF THIS SECTION 16 WILL EXPRESSLY SURVIVE THE CLOSE OF ESCROW AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. Initials of Seller: Initials of Buyer: (f) With respect to any release by Buyer contained in this Agreement, Buyer expressly waives the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Initials of Buyer:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Retail Opportunity Investments Corp)
Condition of Project. (a) Except as otherwise expressly provided in this Agreement, Buyer shall accept the Project at the Close of Escrow in the "as is", "where is" condition, with all faults. Buyer agrees Tenant acknowledges that, except as expressly set forth hereincontained in this lease, Seller shall not be liable neither Landlord nor anyone acting for or on behalf of Landlord has made any representation, warranty or promise to Tenant concerning the physical aspects or condition of any of the Project; the feasibility, desirability or convertibility of any of the Project into any particular use; the zoning, building or land use restrictions applicable to the zoning, building or land use restrictions applicable to the Project; the projected income or expenses for any constructionof the Project or any business conducted thereon; the suitability of the Project for any particular use; or the presence or absence of any Hazardous Materials; and that in entering into this lease, latent Tenant has not relied upon any representation, statement or patent defects warranty of Landlord or anyone acting for or on behalf of Landlord, other than as expressly contained in this lease, and that all matters concerning the Premises shall be independently verified by Tenant and that Tenant shall enter into this lease on Tenant's own examination thereof (or Tenant's election not to do so). Tenant does hereby waive, and Landlord does hereby disclaim, all warranties of any type or kind whatsoever with respect to the Project, express or implied, including by way of description, but not limitation, those of fitness for a particular purpose, tenantability, habitability and shall not be bound in any manner whatsoever by any guarantees, promises, projections, operating expenses, set-ups or other information pertaining to use. Tenant hereby expressly assumes the Project made, furnished or claimed to have been made or furnished by Seller or any other person or entity, risk that adverse physical conditions and the full extent thereof (including, without limitation, Seller’s Broker (including without limitation any information contained in soil, groundwater and surface water contamination and air pollution from Hazardous Materials) may not be revealed by Tenant's inspections, reviews and studies of the marketing package for Project prior to the Property prepared date of possession. No person acting on behalf of Landlord is authorized to make, and by Seller’s Broker), or any partner, member, manager, shareholder, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker, whether verbally or in writing. Buyer execution hereof Tenant acknowledges that neither Seller nor no such person has made, any of the employeesrepresentation, agents warranty, guaranty or attorneys of Seller has promise except as may be expressly set forth herein; and no agreement, statement, representation, guaranty or promise made by any verbal such person which is not expressly contained herein shall be valid or written binding on Landlord and Landlord's agents, heirs, successors or assigns. The only representations or warranties whatsoever to Buyer, whether express, implied, statutory, or by operation of law, except as expressly set forth in this Agreement and, in particular, that no such representations and warranties have been made outstanding with respect to the physical or environmental condition or operation of the Project, the layout or square footage of the Project, the actual or projected revenue and expenses of the Project or any of the Leases, zoning, environmental, and other laws, regulations and rules applicable to the Project, or the compliance of the Project therewithLandlord, the quantityeither express or implied by law, quality or condition of the articles of personal property and fixtures included in the transactions contemplated hereby, the use or occupancy of the Project or any part thereof or any other matter or thing affecting or relating to the Project or the transactions contemplated hereby, except as specifically set forth in this Agreement. Buyer has not relied and is not relying upon any representations or warranties, other than Seller's Representations, or upon any statements made in any informational materials with respect to the Project provided by Seller or any other person or entity, including Seller’s Broker (including without limitation any information contained in the marketing package for the Property prepared by Seller’s Broker)or any shareholder, member, manager, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker. Without limitation of the foregoing, Buyer specifically acknowledges and agrees that it has assumed the risk of changes in the condition of the Project between the Opening of Escrow and the Close of Escrow and no adverse change in such condition shall grant Buyer any right to terminate this Agreement or to obtain any damages against Seller except as otherwise provided herein. IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, AS TO THE QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY COMPONENT THEREOF, AND THE PROPERTY AND EACH COMPONENT THEREOF ARE SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS AGREEMENT, BUYER AFFIRMS AND AGREES THAT (A) BUYER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY OR ANY COMPONENT THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE PROPERTY OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, (C) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY OR ANY COMPONENT THEREOF, (D) BUYER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND EACH COMPONENT THEREOF AND HAS DETERMINED TO PURCHASE THE PROPERTY AND EACH COMPONENT THEREOF BASED ON SUCH INSPECTION, AND (E) UPON CLOSE OF ESCROW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER, ON THE CLOSING DATE, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED, AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION IN TORT, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL OR ENVIRONMENTAL CONDITIONS, AND/OR VIOLATIONS OF ANY APPLICABLE LAWS.
(b) Without limiting the generality of the provisions of Paragraph 16(a) above, Buyer specifically acknowledges and agrees as follows:
(i) Except for the Seller's Representations, neither Seller nor any other party acting (or purporting to act) on behalf of Seller, has made any (and Seller hereby disclaims any) representation or warranty of any kind of nature concerning any environmental condition existing at the Project, including without limitation (1) air quality, mold or water conditions which may exist at the Project or other matters governed by California's Toxic Mold Protection Act (Cal. Health & Safety Code §§26100-26156; Stats 2001, ch 584), or (2) matters disclosed by the environmental reports included in the Documents and Materials or otherwise made available to Buyer (the matters stated therein being referred to as the "Environmental Disclosed Matters");
(ii) Except as otherwise are expressly set forth in this Agreement, Buyer shall take title to the Project subject to any and all environmental conditions thereat (or the presence of any matter or substance relating to any such environmental condition at the Project, including without limitation mold), whether known or unknown, disclosed or undisclosed, including, without limitation, the Environmental Disclosed Matters, and any and all claims and/or liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under the Project, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seqherein., the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq., and the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq., or any other law or cause of action (including any federal or state based statutory, regulatory or common law cause of action) related to environmental matters or liability with respect to or affecting the Project (any of the foregoing described in this subparagraph (b)(ii) being referred to as "Environmental Conditions"); and
(iii) Except as otherwise expressly set forth in this Agreement, Buyer hereby releases Seller and each of its constituent partners, members, managers, officers, directors, attorneys, lenders, agents, successors and assigns (collectively, the "Seller Exculpated Parties") from any liability of any kind or nature arising with respect to any Environmental Conditions and, specifically, agrees that, if any claim is brought against Buyer arising out of any Environmental Condition, Buyer shall have no claim of any kind or nature against Seller or any Seller Exculpated Party (the parties hereby agreeing that Buyer’s remedies for breach of any Seller’s Representation regarding existing Environmental Conditions shall be as set forth in Section 13). The foregoing shall, however, in no event be deemed an obligation on the part of Buyer to indemnify Seller with respect to any Environmental Disclosed Matters or Environmental Conditions.
(c) Section 25359.7 of the California Health and Safety Code requires owners of nonresidential property who know or have reasonable cause to believe that a release of a hazardous material has come to be located on or beneath real property to provide written notice of that condition to a buyer of said real property. Except as otherwise expressly set forth in this Agreement, Buyer acknowledges that Seller has disclosed to Buyer all matters described in the Environmental Disclosed Matters. By Buyer's execution of this Agreement, and except as otherwise expressly set forth in this Agreement, Buyer (i) acknowledges Buyer's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code, (ii) has become or will become fully aware prior to the Close of Escrow of the matters described in the Environmental Disclosed Matters, a copy of which Buyer has received and has reviewed; and (iii) as of Close of Escrow and after receiving advice of Buyer's legal counsel, waives any and all rights or remedies whatsoever, express, implied, statutory or by operation of law, Buyer may have against Seller and arising under Section 25359.7 of the California Health and Safety Code. The provisions of this Paragraph 16(c) shall survive the Closing.
(d) Buyer and Seller acknowledge that Seller or Broker is required to disclose if any Project lies within the following natural hazard areas or zones:
(i) a special flood hazard area (any type Zone "A" or "V") designated by the Federal Emergency Management Agency (Cal. Gov. Code § 8589.3);
(ii) an area of potential flooding shown on a dam failure inundation map designated pursuant to Cal. Gov. Code § 8589.5 (Cal. Gov. Code § 8589.4);
(iii) a very high fire hazard severity zone designated pursuant to Cal. Gov. Code § 51178 or 51179 (in which event the owner maintenance obligations of Cal. Gov. Code § 51182 would apply) (Cal. Gov. Code § 51183.5);
(iv) a wildland area that may contain substantial forest fire risks and hazards designated pursuant to Cal. Pub. Resources Code § 4125 (in which event (x) the property owner would be subject to the maintenance requirements of Cal. Pub. Resources Code § 4291 and (y) it would not be the state's responsibility to provide fire protection services to any building or structure located within the wildland area except, if applicable, pursuant to Cal. Pub. Resources Code § 4129 or pursuant to a cooperative agreement with a local agency for those purposes pursuant to Cal. Pub. Resources Code § 4142) (Pub. Resources Code § 4136);
(v) an earthquake fault zone (Pub. Res. Code § 2621.9); or
(vi) a seismic hazard zone (and, if applicable, whether a landslide zone or liquefaction zone) (Pub. Resources Code § 2694). Seller has engaged or will cause the Title Company to engage the services of a natural hazard disclosure expert (in such capacity, the "Natural Hazard Expert") to examine the maps and other information specifically made available to the public by government agencies for the purpose of enabling each of Seller and Seller’s Broker to fulfill its disclosure obligations with respect to the natural hazards referred to in California Civil Code Section 1103(c) and to report the result of its examination to Buyer and Seller in writing. As contemplated in California Civil Code Section 1103.2(b), if an earthquake fault zone, seismic hazard zone, very high fire hazard severity zone or wildland fire area map or accompanying information is not of sufficient accuracy or scale for the Natural Hazard Expert to determine if a particular Project is within the respective natural hazard zone, then for purposes of the disclosure such Project shall be considered to lie within such natural hazard zone. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller and Seller’s Broker from their disclosure obligations referred to herein, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of each of Seller and Seller’s Broker for errors or omissions not within in its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. The obligations of Seller and Seller’s Broker are several (and not joint and not joint and several) and, without limitation, in no event shall Seller have any responsibility for matters not actually known to Seller. THESE HAZARDS MAY LIMIT BUYER'S ABILITY TO DEVELOP THE PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER. THE MAPS ON WHICH THESE DISCLOSURES ARE BASED ON ESTIMATE WHERE NATURAL HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY.
(e) BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT, THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, 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 DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16. THE TERMS AND CONDITIONS OF THIS SECTION 16 WILL EXPRESSLY SURVIVE THE CLOSE OF ESCROW AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. Initials of Seller: Initials of Buyer:
(f) With respect to any release by Buyer contained in this Agreement, Buyer expressly waives the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Initials of Buyer:
Appears in 1 contract
Condition of Project. (a) Except as otherwise expressly provided in this Agreement, Buyer shall accept the Project at the Close of Escrow in the "as is", "where is" condition, with all faults. Buyer agrees Tenant acknowledges that, except as expressly set forth hereincontained in this lease, Seller shall not be liable neither Landlord nor anyone acting for or on behalf of Landlord has made any representation, warranty or promise to Tenant concerning the physical aspects or condition of any of the Project; the feasibility, desirability or convertibility of any of the Project into any particular use; the zoning, building or land use restrictions applicable to the zoning, building or land use restrictions applicable to the Project; the projected income or expenses for any constructionof the Project or any business conducted thereon; the suitability of the Project for any particular use; or the presence or absence of any Hazardous Materials; and that in entering into this lease, latent Tenant has not relied upon any representation, statement or patent defects warranty of Landlord or anyone acting for or on behalf of Landlord, other than as expressly contained in this lease, and that all matters concerning the Premises shall be independently verified by Tenant and that Tenant shall enter into this lease on Tenant’s own examination thereof (or Tenant’s election not to do so). Tenant does hereby waive, and Landlord does hereby disclaim, all warranties of any type or kind whatsoever with respect to the Project, express or implied, including by way of description, but not limitation, those of fitness for a particular purpose, tenantability, habitability and shall not be bound in any manner whatsoever by any guarantees, promises, projections, operating expenses, set-ups or other information pertaining to use. Tenant hereby expressly assumes the Project made, furnished or claimed to have been made or furnished by Seller or any other person or entity, risk that adverse physical conditions and the full extent thereof (including, without limitation, Sellersoil, groundwater and surface water contamination and air pollution from Hazardous Materials) may not be revealed by Tenant’s Broker (including without limitation any information contained in inspections, reviews and studies of the marketing package for Project prior to the Property prepared date of possession. No person acting on behalf of Landlord is authorized to make, and by Seller’s Broker), or any partner, member, manager, shareholder, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker, whether verbally or in writing. Buyer execution hereof Tenant acknowledges that neither Seller nor no such person has made, any of the employeesrepresentation, agents warranty, guaranty or attorneys of Seller has promise except as may be expressly set forth herein; and no agreement, statement, representation, guaranty or promise made by any verbal such person which is not expressly contained herein shall be valid or written binding on Landlord and Landlord’s agents, heirs, successors or assigns. The only representations or warranties whatsoever to Buyer, whether express, implied, statutory, or by operation of law, except as expressly set forth in this Agreement and, in particular, that no such representations and warranties have been made outstanding with respect to the physical or environmental condition or operation of the Project, the layout or square footage of the Project, the actual or projected revenue and expenses of the Project or any of the Leases, zoning, environmental, and other laws, regulations and rules applicable to the Project, or the compliance of the Project therewithLandlord, the quantityeither express or implied by law, quality or condition of the articles of personal property and fixtures included in the transactions contemplated hereby, the use or occupancy of the Project or any part thereof or any other matter or thing affecting or relating to the Project or the transactions contemplated hereby, except as specifically set forth in this Agreement. Buyer has not relied and is not relying upon any representations or warranties, other than Seller's Representations, or upon any statements made in any informational materials with respect to the Project provided by Seller or any other person or entity, including Seller’s Broker (including without limitation any information contained in the marketing package for the Property prepared by Seller’s Broker)or any shareholder, member, manager, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker. Without limitation of the foregoing, Buyer specifically acknowledges and agrees that it has assumed the risk of changes in the condition of the Project between the Opening of Escrow and the Close of Escrow and no adverse change in such condition shall grant Buyer any right to terminate this Agreement or to obtain any damages against Seller except as otherwise provided herein. IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, AS TO THE QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY COMPONENT THEREOF, AND THE PROPERTY AND EACH COMPONENT THEREOF ARE SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS AGREEMENT, BUYER AFFIRMS AND AGREES THAT (A) BUYER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY OR ANY COMPONENT THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE PROPERTY OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, (C) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY OR ANY COMPONENT THEREOF, (D) BUYER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND EACH COMPONENT THEREOF AND HAS DETERMINED TO PURCHASE THE PROPERTY AND EACH COMPONENT THEREOF BASED ON SUCH INSPECTION, AND (E) UPON CLOSE OF ESCROW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER, ON THE CLOSING DATE, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED, AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION IN TORT, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL OR ENVIRONMENTAL CONDITIONS, AND/OR VIOLATIONS OF ANY APPLICABLE LAWS.
(b) Without limiting the generality of the provisions of Paragraph 16(a) above, Buyer specifically acknowledges and agrees as follows:
(i) Except for the Seller's Representations, neither Seller nor any other party acting (or purporting to act) on behalf of Seller, has made any (and Seller hereby disclaims any) representation or warranty of any kind of nature concerning any environmental condition existing at the Project, including without limitation (1) air quality, mold or water conditions which may exist at the Project or other matters governed by California's Toxic Mold Protection Act (Cal. Health & Safety Code §§26100-26156; Stats 2001, ch 584), or (2) matters disclosed by the environmental reports included in the Documents and Materials or otherwise made available to Buyer (the matters stated therein being referred to as the "Environmental Disclosed Matters");
(ii) Except as otherwise are expressly set forth in this Agreement, Buyer shall take title to the Project subject to any and all environmental conditions thereat (or the presence of any matter or substance relating to any such environmental condition at the Project, including without limitation mold), whether known or unknown, disclosed or undisclosed, including, without limitation, the Environmental Disclosed Matters, and any and all claims and/or liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under the Project, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seqherein., the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq., and the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq., or any other law or cause of action (including any federal or state based statutory, regulatory or common law cause of action) related to environmental matters or liability with respect to or affecting the Project (any of the foregoing described in this subparagraph (b)(ii) being referred to as "Environmental Conditions"); and
(iii) Except as otherwise expressly set forth in this Agreement, Buyer hereby releases Seller and each of its constituent partners, members, managers, officers, directors, attorneys, lenders, agents, successors and assigns (collectively, the "Seller Exculpated Parties") from any liability of any kind or nature arising with respect to any Environmental Conditions and, specifically, agrees that, if any claim is brought against Buyer arising out of any Environmental Condition, Buyer shall have no claim of any kind or nature against Seller or any Seller Exculpated Party (the parties hereby agreeing that Buyer’s remedies for breach of any Seller’s Representation regarding existing Environmental Conditions shall be as set forth in Section 13). The foregoing shall, however, in no event be deemed an obligation on the part of Buyer to indemnify Seller with respect to any Environmental Disclosed Matters or Environmental Conditions.
(c) Section 25359.7 of the California Health and Safety Code requires owners of nonresidential property who know or have reasonable cause to believe that a release of a hazardous material has come to be located on or beneath real property to provide written notice of that condition to a buyer of said real property. Except as otherwise expressly set forth in this Agreement, Buyer acknowledges that Seller has disclosed to Buyer all matters described in the Environmental Disclosed Matters. By Buyer's execution of this Agreement, and except as otherwise expressly set forth in this Agreement, Buyer (i) acknowledges Buyer's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code, (ii) has become or will become fully aware prior to the Close of Escrow of the matters described in the Environmental Disclosed Matters, a copy of which Buyer has received and has reviewed; and (iii) as of Close of Escrow and after receiving advice of Buyer's legal counsel, waives any and all rights or remedies whatsoever, express, implied, statutory or by operation of law, Buyer may have against Seller and arising under Section 25359.7 of the California Health and Safety Code. The provisions of this Paragraph 16(c) shall survive the Closing.
(d) Buyer and Seller acknowledge that Seller or Broker is required to disclose if any Project lies within the following natural hazard areas or zones:
(i) a special flood hazard area (any type Zone "A" or "V") designated by the Federal Emergency Management Agency (Cal. Gov. Code § 8589.3);
(ii) an area of potential flooding shown on a dam failure inundation map designated pursuant to Cal. Gov. Code § 8589.5 (Cal. Gov. Code § 8589.4);
(iii) a very high fire hazard severity zone designated pursuant to Cal. Gov. Code § 51178 or 51179 (in which event the owner maintenance obligations of Cal. Gov. Code § 51182 would apply) (Cal. Gov. Code § 51183.5);
(iv) a wildland area that may contain substantial forest fire risks and hazards designated pursuant to Cal. Pub. Resources Code § 4125 (in which event (x) the property owner would be subject to the maintenance requirements of Cal. Pub. Resources Code § 4291 and (y) it would not be the state's responsibility to provide fire protection services to any building or structure located within the wildland area except, if applicable, pursuant to Cal. Pub. Resources Code § 4129 or pursuant to a cooperative agreement with a local agency for those purposes pursuant to Cal. Pub. Resources Code § 4142) (Pub. Resources Code § 4136);
(v) an earthquake fault zone (Pub. Res. Code § 2621.9); or
(vi) a seismic hazard zone (and, if applicable, whether a landslide zone or liquefaction zone) (Pub. Resources Code § 2694). Seller has engaged or will cause the Title Company to engage the services of a natural hazard disclosure expert (in such capacity, the "Natural Hazard Expert") to examine the maps and other information specifically made available to the public by government agencies for the purpose of enabling each of Seller and Seller’s Broker to fulfill its disclosure obligations with respect to the natural hazards referred to in California Civil Code Section 1103(c) and to report the result of its examination to Buyer and Seller in writing. As contemplated in California Civil Code Section 1103.2(b), if an earthquake fault zone, seismic hazard zone, very high fire hazard severity zone or wildland fire area map or accompanying information is not of sufficient accuracy or scale for the Natural Hazard Expert to determine if a particular Project is within the respective natural hazard zone, then for purposes of the disclosure such Project shall be considered to lie within such natural hazard zone. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller and Seller’s Broker from their disclosure obligations referred to herein, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of each of Seller and Seller’s Broker for errors or omissions not within in its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. The obligations of Seller and Seller’s Broker are several (and not joint and not joint and several) and, without limitation, in no event shall Seller have any responsibility for matters not actually known to Seller. THESE HAZARDS MAY LIMIT BUYER'S ABILITY TO DEVELOP THE PROPERTY, TO OBTAIN INSURANCE, OR TO RECEIVE ASSISTANCE AFTER A DISASTER. THE MAPS ON WHICH THESE DISCLOSURES ARE BASED ON ESTIMATE WHERE NATURAL HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY.
(e) BUYER, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT, THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, 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 DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16. THE TERMS AND CONDITIONS OF THIS SECTION 16 WILL EXPRESSLY SURVIVE THE CLOSE OF ESCROW AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. Initials of Seller: Initials of Buyer:
(f) With respect to any release by Buyer contained in this Agreement, Buyer expressly waives the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Initials of Buyer:
Appears in 1 contract
Samples: Industrial Lease (Airxpanders Inc)
Condition of Project. (ai) Except as otherwise expressly provided in this Agreement, Buyer shall accept the Project at the Close of Escrow in the "as is", "where is" condition, with all faults. Buyer agrees that, except as expressly set forth herein, Seller shall not be liable for any constructionPurchaser represents that it is a knowledgeable, latent or patent defects experienced and sophisticated buyer of real estate in general and full-service hotels in particular, and that Purchaser is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Project. Except as set forth herein, Purchaser is, or as of the Due Diligence Deadline will be, familiar with the Project. Purchaser is relying solely upon, and shall not be bound in any manner whatsoever by any guaranteesas of Due Diligence Deadline will have conducted its own, promisesindependent inspection, projections, operating expenses, set-ups or other information pertaining to investigation and analysis of the Project made, furnished as it deems necessary or claimed to have been made or furnished by Seller or any other person or entityappropriate in so acquiring the Project from Seller, including, without limitation, Selleran analysis of any and all matters concerning the condition of the Project and its suitability for Purchaser’s Broker intended purposes, and a review of all applicable laws, ordinances, rules and governmental regulations (including without limitation including, but not limited to, those relative to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Project. Except as set forth herein, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not be revealed by Purchaser’s inspections and investigations. Except as set forth herein, Purchaser acknowledges and agrees that Seller shall sell and convey to Purchaser and Purchaser shall accept the Project “as is, where is,” with all faults. Seller is not liable or bound in any information contained in the marketing package for the Property prepared manner by Seller’s Broker)any oral or written statements, representations, or information pertaining to the Project furnished by any partnerreal estate broker, member, manager, shareholderagent, employee, agent, attorney servant or other person representing or purporting to represent Seller or Seller’s Brokerperson, whether verbally or in writingunless the same are expressly set forth herein. Buyer Except as set forth herein, Purchaser acknowledges that neither Seller nor the Purchase Price reflects the “as is” nature of this sale and any of faults, liabilities, defects or other adverse matters that may be associated with the employees, agents or attorneys of Seller Project. Purchaser has made any verbal or written representations or warranties whatsoever to Buyer, whether express, implied, statutory, or by operation of law, except as expressly fully reviewed the disclaimers and waivers set forth in this Agreement and, in particular, with its counsel and understands the significance and effect thereof. Purchaser acknowledges and agrees that no such representations Seller’s disclaimers as set forth herein are an integral part of this Agreement and warranties that Seller would not have been made with respect agreed to the physical or environmental condition or operation of the Project, the layout or square footage of the Project, the actual or projected revenue and expenses of sell the Project or any to Purchaser for the Purchase Price without Purchaser’s acknowledgment of the Leases, zoning, environmental, Seller’s disclaimer and other laws, regulations and rules applicable to the Project, or the compliance of the Project therewith, the quantity, quality or condition of the articles of personal property and fixtures included in the transactions contemplated hereby, the use or occupancy of the Project or any part thereof or any other matter or thing affecting or relating to the Project or the transactions contemplated hereby, except as specifically matters set forth in this Agreement. Buyer has not relied and is not relying upon any representations or warranties, other than Seller's Representations, or upon any statements made in any informational materials with respect to the Project provided by Seller or any other person or entity, including Seller’s Broker (including without limitation any information contained in the marketing package for the Property prepared by Seller’s Broker)or any shareholder, member, manager, employee, agent, attorney or other person representing or purporting to represent Seller or Seller’s Broker. Without limitation of the foregoing, Buyer specifically acknowledges and agrees that it has assumed the risk of changes in the condition of the Project between the Opening of Escrow and the Close of Escrow and no adverse change in such condition shall grant Buyer any right to terminate this Agreement or to obtain any damages against Seller except as otherwise provided herein. IN ADDITION TO, AND WITHOUT LIMITATION OF THE FOREGOING, EXCEPT AS SET FORTH IN THIS AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, AS TO THE QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF THE PROPERTY OR ANY COMPONENT THEREOF, AND THE PROPERTY AND EACH COMPONENT THEREOF ARE SOLD IN AN "AS IS", "WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTING THIS AGREEMENT, EXCEPT AS SET FORTH IN THIS AGREEMENT, BUYER AFFIRMS AND AGREES THAT (A) BUYER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY OR ANY COMPONENT THEREOF FOR ANY PARTICULAR PURPOSE, (B) SELLER MAKES NO WARRANTY THAT THE PROPERTY OR ANY COMPONENT THEREOF ARE FIT FOR ANY PARTICULAR PURPOSE, (C) THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY OR ANY COMPONENT THEREOF, (D) BUYER HAS BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND EACH COMPONENT THEREOF AND HAS DETERMINED TO PURCHASE THE PROPERTY AND EACH COMPONENT THEREOF BASED ON SUCH INSPECTION, AND (E) UPON CLOSE OF ESCROW, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INVESTIGATIONS, AND BUYER, ON THE CLOSING DATE, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED, AND RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION IN TORT, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, THAT BUYER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL OR ENVIRONMENTAL CONDITIONS, AND/OR VIOLATIONS OF ANY APPLICABLE LAWS.
(bii) Without limiting the generality of the provisions of Paragraph 16(a) above, Buyer and anything contained herein to the contrary notwithstanding, except with respect to the representations and warranties of Seller set forth in Section 3 hereof or in any document delivered by Seller to Purchaser pursuant to Section 7 hereof, it is understood and agreed that Seller has not made and is not now making, and Seller specifically acknowledges disclaims, any warranties, representations or guaranties of any kind or character, express or implied, oral or written, past, present or future, with respect to the Project, including, but not limited to warranties, representations or guaranties as to (A) matters of title; (B) environmental matters relating to the Project or any portion thereof, (C) geological conditions, including, without limitation, subsidence, subsurface conditions, water table, underground water reservoirs, limitations regarding the withdrawal of water and agrees as follows:earthquake faults and the resulting damage of past and/or future earthquakes, (D) whether, and to the extent to which, the Project or any portion thereof is affected by any stream (surface or underground), body of water, flood prone area, flood plain, floodway or special flood hazard, (E) drainage, (F) soil conditions, including the existence of instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides, or the sufficiency of any undershoring, (G) zoning to which the Project or any portion thereof may be subject, (H) the availability of any utilities to the Project or any portion thereof including, without limitation, water, sewage, gas, and electric, (I) usages of adjoining property, (J) access to the Project or any portion thereof, (K) the value, compliance with the plans and specifications, size, location, age, use, design, quality, description, suitability, structural integrity, operation, title to, or physical or financial condition of the Project or any portion thereof, (L) any income, expenses, charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Project or any part thereof, (M) the presence of Hazardous Substances (hereinafter defined) in or on, under or in the vicinity of the Project, (N) the condition or use of the Project or compliance of the Project with any or all past, present or future federal, state or local ordinances, rules, regulations or laws, building, fire or zoning ordinances, codes or other similar laws (including, but not limited to, Title III of the American With Disabilities Act (42 U.S.C.A. §§ 12101 et seq.), and federal, state or common law-based actions and any private right of action under state and federal law to which the Project is or may be subject, including, but not limited to, CERCLA (42 U.S.C.A. §§ 9601 et seq.) and RCRA (42 U.S.C.A. §§6901 et seq.)), (O) the existence of non-existence of underground storage tanks, (P) any other matter affecting the stability or integrity of the Project, (Q) the potential for further development of the Project, (R) the existence of vested land use, zoning or building entitlements the Project, (S) the merchantability of the Project or fitness of the Project for any particular purpose (Purchaser affirming that Purchaser has not relied on Seller’s skill or judgment to select or furnish the Project for any particular purposed, and the Seller makes no warranty that the Project is fit for any particular purpose), (T) tax consequences, (U) the content or accuracy of any report, study, opinion or conclusion of any soils, environmental or other engineer or other person or entity who has examined the Project or any aspect thereof, (V) the content or accuracy of any information released to Purchaser by an engineer or planner in connection with the development of the Project, or (W) the content or accuracy any documents, materials and other information given to Purchaser by Seller with respect to the Project. The terms and conditions of this Section 4.D. shall expressly survive the Closing and shall not be merged with the Deed.
(iiii) Except for Without limiting the generality of the foregoing, except as set forth herein, Purchaser hereby expressly waives, releases and relinquishes any and all claims, causes of action, rights and remedies Purchaser may now or hereafter have against Seller's Representations, neither Seller nor any other party acting (or purporting to act) on behalf and the affiliates, directors, officers, attorneys, employees, partners, shareholders and agents of Seller, has made whether known or unknown (A) regarding any (matters affecting the Project and Seller hereby disclaims any) representation or warranty any condition of any kind of nature concerning any environmental condition existing at the ProjectProject in general, whatsoever, including without limitation limitation, any improvements that may exist thereon; and (B) under any Environmental Law, common law, in equity or otherwise, with respect to (1) air qualityany past, mold present or water conditions which may exist at future presence or existence of Hazardous Materials on, under or about the Project or other matters governed by California's Toxic Mold Protection Act (Cal. Health & Safety Code §§26100-26156; Stats 2001including, ch 584)without limitation, in the groundwater underlying the Project) or (2) matters disclosed by any past, present or future violations of any Environmental Laws. For the environmental reports included in the Documents and Materials or otherwise made available to Buyer (the matters stated therein being referred to as the "Environmental Disclosed Matters");
(ii) Except as otherwise expressly set forth in purposes of this Agreement, Buyer shall take title to the Project subject to term “Environmental Laws” means any and all environmental conditions thereat (federal, state and local, statutes, ordinances, orders, rules, regulations, guidance documents, judgments, governmental authorizations, or any other requirements of governmental authorities, as may presently exist, or as may be amended or supplemented, or hereafter enacted, relating to the presence, release, generation, use, handling, treatment, storage, transportation or disposal of Hazardous Materials, or the presence protection of any matter the environment or substance relating to any such environmental condition at the Projecthuman, including without limitation mold), whether known plant or unknown, disclosed or undisclosedanimal health, including, without limitation, the Environmental Disclosed Matters, and any and all claims and/or liabilities relating to (in any manner whatsoever) any hazardous, toxic or dangerous materials or substances located in, at, about or under the Project, or for any and all claims or causes of action (actual or threatened) based upon, in connection with or arising out of the Comprehensive Environmental Response, Compensation, Compensation and Liability ActAct of 1980 , as amended by the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C.A. § 9601), the Hazardous Materials Transportation Act (49 U.S.C. §9601 § 1801 et seq.), the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 Recovery Act (42 U.S.C. § 6901 et seq.), and the Superfund Amendments and Xxxxxxxxxxxxxxx Xxx, 00 X.X.X. §0000 Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), or any other law statute, law, ordinance, code, rule, regulation, order or cause of action (including any federal or state based statutorydecree regulating, regulatory or common law cause of action) related to environmental matters or liability with respect relating to or affecting imposing liability or standards of conduct concerning any hazardous substances including the Project (any laws, ordinances and regulations of the foregoing described in this subparagraph (b)(ii) being referred to as "Environmental Conditions"); and
(iii) Except as otherwise expressly set forth in this AgreementCity of Alexandria, Buyer hereby releases Seller County of Arlington and each the State of its constituent partners, members, managers, officers, directors, attorneys, lenders, agents, successors and assigns (collectivelyVirginia. As used herein, the "Seller Exculpated Parties") from any liability of any kind or nature arising with respect to any Environmental Conditions and, specifically, agrees that, if any claim is brought against Buyer arising out of any Environmental Condition, Buyer shall have no claim of any kind or nature against Seller or any Seller Exculpated Party (the parties hereby agreeing that Buyer’s remedies for breach of any Seller’s Representation regarding existing Environmental Conditions shall be as set forth in Section 13term “Hazardous Material(s). The foregoing shall, however, in no event be deemed an obligation on the part of Buyer to indemnify Seller with respect to any Environmental Disclosed Matters or Environmental Conditions.
(c) Section 25359.7 of the California Health and Safety Code requires owners of nonresidential property who know or have reasonable cause to believe that a release of a hazardous material has come to be located on or beneath real property to provide written notice of that condition to a buyer of said real property. Except as otherwise expressly set forth in this Agreement, Buyer acknowledges that Seller has disclosed to Buyer all matters described in the Environmental Disclosed Matters. By Buyer's execution of this Agreement, and except as otherwise expressly set forth in this Agreement, Buyer (i) acknowledges Buyer's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code, (ii) has become or will become fully aware prior to the Close of Escrow of the matters described in the Environmental Disclosed Matters, a copy of which Buyer has received and has reviewed; and (iii) as of Close of Escrow and after receiving advice of Buyer's legal counsel, waives any and all rights or remedies whatsoever, express, implied, statutory or by operation of law, Buyer may have against Seller and arising under Section 25359.7 of the California Health and Safety Code. The provisions of this Paragraph 16(c) shall survive the Closing.
(d) Buyer and Seller acknowledge that Seller or Broker is required to disclose if any Project lies within the following natural hazard areas or zones:
(i) a special flood hazard area (any type Zone "A" or "V") designated by the Federal Emergency Management Agency (Cal. Gov. Code § 8589.3);
(ii) an area of potential flooding shown on a dam failure inundation map designated pursuant to Cal. Gov. Code § 8589.5 (Cal. Gov. Code § 8589.4);
(iii) a very high fire hazard severity zone designated pursuant to Cal. Gov. Code § 51178 or 51179 (in which event the owner maintenance obligations of Cal. Gov. Code § 51182 would apply) (Cal. Gov. Code § 51183.5);
(iv) a wildland area that may contain substantial forest fire risks and hazards designated pursuant to Cal. Pub. Resources Code § 4125 (in which event (x) the property owner would be subject to the maintenance requirements of Cal. Pub. Resources Code § 4291 and (y) it would not be the state's responsibility to provide fire protection services to any building or structure located within the wildland area except, if applicable, pursuant to Cal. Pub. Resources Code § 4129 or pursuant to a cooperative agreement with a local agency for those purposes pursuant to Cal. Pub. Resources Code § 4142) (Pub. Resources Code § 4136);
(v) an earthquake fault zone (Pub. Res. Code § 2621.9); or
(vi) a seismic hazard zone (and, if applicable, whether a landslide zone or liquefaction zone) (Pub. Resources Code § 2694). Seller has engaged or will cause the Title Company to engage the services of a natural hazard disclosure expert (in such capacity, the "Natural Hazard Expert") to examine the maps and other information specifically made available to the public by government agencies for the purpose of enabling each of Seller and Seller’s Broker to fulfill its disclosure obligations with respect to the natural hazards referred to in California Civil Code Section 1103(c) and to report the result of its examination to Buyer and Seller in writing. As contemplated in California Civil Code Section 1103.2(b), if an earthquake fault zone, seismic hazard zone, very high fire hazard severity zone or wildland fire area map or accompanying information is not of sufficient accuracy or scale for the Natural Hazard Expert to determine if a particular Project is within the respective natural hazard zone, then for purposes of the disclosure such Project shall be considered to lie within such natural hazard zone. The written report prepared by the Natural Hazard Expert regarding the results of its examination fully and completely discharges Seller and Seller’s Broker from their disclosure obligations referred to herein, and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of each of Seller and Seller’s Broker for errors or omissions not within in its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the natural hazards referred to above. The obligations of Seller and Seller’s Broker are several (and not joint and not joint and several) and” includes, without limitation, in no event shall Seller have any responsibility for matters not actually known hazardous or toxic material, substance, irritant, chemical, or waste, including without limitation (a) any material defined, classified, designated, listed or otherwise considered under any Environmental Law as a “hazardous waste,” “hazardous substance,” “hazardous material,” “extremely hazardous waste,” “acutely hazardous waste,” “radioactive waste,” “biohazardous waste,” “pollutant,” “toxic pollutant,” “contaminant,” “restricted hazardous waste,” “infectious waste,” “toxic substance,” or any other term or expression intended to Seller. THESE HAZARDS MAY LIMIT BUYER'S ABILITY TO DEVELOP THE PROPERTYdefine, TO OBTAIN INSURANCElist, OR TO RECEIVE ASSISTANCE AFTER A DISASTER. THE MAPS ON WHICH THESE DISCLOSURES ARE BASED ON ESTIMATE WHERE NATURAL HAZARDS EXIST. THEY ARE NOT DEFINITIVE INDICATORS OF WHETHER OR NOT A PROPERTY WILL BE AFFECTED BY A NATURAL DISASTER. BUYER MAY WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING THOSE HAZARDS AND OTHER HAZARDS THAT MAY AFFECT THE PROPERTY.
regulate or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment, (b) any material, substance or waste which is toxic, ignitable, corrosive, reactive, explosive, flammable, infectious, radioactive, carcinogenic or mutagenic, and which is or becomes regulated by any local governmental authority, any agency of the United States Government, (c) asbestos, (d) oil, petroleum, petroleum based products and petroleum additives and derived substances, (e) BUYERurea formaldehyde foam insulation, WITH BUYER'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, AND UNDERSTANDS THEIR SIGNIFICANCE AND EFFECT. BUYER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT, THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16, 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 DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE SET FORTH IN THIS SECTION 16. THE TERMS AND CONDITIONS OF THIS SECTION 16 WILL EXPRESSLY SURVIVE THE CLOSE OF ESCROW AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. Initials of Seller: Initials of Buyer:
(f) With respect to polychlorinated biphenyls (PCBs), (g) freon and other chlorofluorocarbons, (h) any release by Buyer contained in this Agreementdrilling fluids, Buyer expressly waives the provisions of California Civil Code § 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement produced waters and other wastes associated with the debtorexploration, development or production of crude oil, natural gas or geothermal resources, and (i) lead-based paint. The waivers and releases by Purchaser herein contained shall survive the Closing and the recordation of the Deed and shall not be deemed merged into the Deed upon its recordation." Initials of Buyer:
Appears in 1 contract
Samples: Purchase and Sale Agreement (Lasalle Hotel Properties)
