CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD NOR ANY PERSON ACTING ON BEHALF OF CONCORD NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIRE) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED SOLELY ON CONCORD’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the Closing.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Empire Resorts Inc)
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY (a) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT ORCONSULTANT, CONTRACTOR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD SELLER, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIREPURCHASER) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD "EXCULPATED PARTIES”") HAS HAVE MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING INCLUDING, WITHOUT LIMITATION LIMITATION, WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING CONNECTION WITH ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE DILIGENCE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) AGREES THAT IT SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED RELY SOLELY ON CONCORD’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this AgreementPURCHASER ACKNOWLEDGES AND AGREES THAT IT IS PURCHASING THE PROPERTY "AS IS" AND "WITH ALL FAULTS", and the acceptance thereof by Empire or the CompanyBASED UPON THE CONDITION (PHYSICAL OR OTHERWISE) OF THE PROPERTY AS OF THE DATE OF THIS AGREEMENT, as applicableREASONABLE WEAR AND TEAR AND, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunderSUBJECT TO THE PROVISIONS OF SECTIONS 12 AND 13, except those obligations of Concord which are expressly stated in this Agreement to survive the ClosingLOSS BY CONDEMNATION OR FIRE OR OTHER CASUALTY EXCEPTED. The delivery of items specified in Section 14.2 and 14.3 of this AgreementPURCHASER ACKNOWLEDGES AND AGREES THAT ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT BE SUBJECT TO ANY FINANCING CONTINGENCY OR OTHER CONTINGENCIES OR SATISFACTION OF CONDITIONS AND PURCHASER SHALL HAVE NO RIGHT TO TERMINATE THIS AGREEMENT OR RECEIVE A RETURN OF THE DEPOSIT (OR THE ACCRUED INTEREST THEREON) EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 6(b), and the acceptance thereof by Concord or the Company10(e), as applicable12(a)(ii), shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder13(a)(ii) AND 20(b) OF THIS AGREEMENT. PURCHASER ACKNOWLEDGES AND AGREES THAT SECTION 25359.7 OF THE CALIFORNIA HEALTH AND SAFETY CODE REQUIRES OWNERS OF NON-RESIDENTIAL REAL PROPERTY WHO KNOW, except those obligations of Empire which are expressly stated in this Agreement to survive the ClosingOR HAVE REASONABLE CAUSE TO BELIEVE, THAT ANY RELEASE OF HAZARDOUS SUBSTANCES HAS COME TO BE LOCATED ON OR BENEATH THE REAL PROPERTY TO PROVIDE WRITTEN NOTICE OF SAME TO A BUYER OF THE REAL PROPERTY. SELLER HAS MADE AVAILABLE TO PURCHASER PRIOR TO THE EFFECTIVE DATE ENVIRONMENTAL REPORTS AND CORRESPONDENCE (HEREINAFTER, THE "ENVIRONMENTAL REPORTS") THAT IDENTIFY AND/OR DESCRIBE RELEASES OF HAZARDOUS MATERIALS (DEFINED BELOW) ON AND/OR ABOUT THE PROPERTY, IF ANY. BY EXECUTION OF THIS AGREEMENT, PURCHASER (A) ACKNOWLEDGES ITS RECEIPT OF THE FOREGOING NOTICE GIVEN PURSUANT TO SECTION 25359.7 OF THE CALIFORNIA HEALTH AND SAFETY CODE, (B) IS FULLY AWARE OF THE MATTERS DESCRIBED IN THE ENVIRONMENTAL REPORTS AND (C) AFTER RECEIVING ADVICE OF ITS LEGAL COUNSEL, WAIVES ANY AND ALL RIGHTS PURCHASER MAY HAVE TO ASSERT THAT SELLER HAS NOT COMPLIED WITH THE REQUIREMENTS OF SECTION 25359.7 OF THE CALIFORNIA HEALTH AND SAFETY CODE. "HAZARDOUS MATERIALS" INCLUDES, WITHOUT LIMITATION, ANY 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 LAWS (DEFINED BELOW), INCLUDING, WITHOUT LIMITATION, AS DEFINED IN CALIFORNIA HEALTH & SAFETY CODE SECTION 25260, 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 DEFINE, LIST, 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 STATE OF CALIFORNIA OR ANY AGENCY OF THE UNITED STATES GOVERNMENT, (C) ASBESTOS, (D) OIL, PETROLEUM, PETROLEUM BASED PRODUCTS AND PETROLEUM ADDITIVES AND DERIVED SUBSTANCES, (E) UREA FORMALDEHYDE FOAM INSULATION, (F) POLYCHLORINATED BIPHENYLS (PCBS), (G) FREON AND OTHER CHLOROFLUOROCARBONS, (H) ANY DRILLING FLUIDS, PRODUCED WATERS AND OTHER WASTES ASSOCIATED WITH THE EXPLORATION, DEVELOPMENT OR PRODUCTION OF CRUDE OIL, NATURAL GAS OR GEOTHERMAL RESOURCES, (I) MOLD, FUNGI, VIRUSES OR BACTERIAL MATTER, AND (J) LEAD-BASED PAINT. "ENVIRONMENTAL LAWS" MEANS ANY AND ALL 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 PROTECTION OF THE ENVIRONMENT OR HUMAN, PLANT OR ANIMAL HEALTH, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT 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. § 1801 ET SEQ.), THE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S.C. § 6901 ET SEQ.), THE 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.), THE XXXXXX-COLOGNE WATER QUALITY CONTROL ACT (CAL. WAT. CODE § 13020 ET SEQ.), THE TOXIC MOLD PROTECTION ACT (CAL. HEALTH & SAFETY CODE § 26100, ET SEQ.), THE SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986 (CAL. HEALTH & SAFETY CODE § 25249.5 ET SEQ.), THE HAZARDOUS WASTE CONTROL ACT (CAL. HEALTH & SAFETY CODE § 25100 ET SEQ.), THE HAZARDOUS MATERIALS RELEASE RESPONSE PLANS & INVENTORY ACT (CAL. HEALTH & SAFETY CODE § 25500 ET SEQ.), AND THE XXXXXXXXX-XXXXXXX-XXXXXX HAZARDOUS SUBSTANCES ACCOUNT ACT (CALIFORNIA HEALTH AND SAFETY CODE, SECTION 25300 ET SEQ.).
Appears in 1 contract
Samples: Purchase and Sale Agreement (Hines Global REIT, Inc.)
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE (a) PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT AND/OR IN ANY DOCUMENTS AND/OR INSTRUMENTS EXECUTED AND DELIVERED BY OR ON BEHALF OF SELLER IN CONNECTION WITH THIS AGREEMENT (THE “EXPRESS REPRESENTATIONS”), NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY - 19 – PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT ORCONSULTANT, CONTRACTOR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD SELLER, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIREPURCHASER) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD "EXCULPATED PARTIES”") HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO (I) THE CONCORD PROPERTYPROPERTY AND THE EXCESS DEVELOPMENT RIGHTS, (II) THE PERMITTED USE OF THE CONCORD PROPERTY AND THE EXCESS DEVELOPMENT RIGHTS OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY AND THE EXCESS DEVELOPMENT RIGHTS THEREWITH, (III) THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTYPROPERTY AND THE EXCESS DEVELOPMENT RIGHTS, (IV) THE AVAILABILITY OR AMOUNT OF ANY TAX CREDITS, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE EXCESS DEVELOPMENT RIGHTS OR THE TRANSACTIONS CONTEMPLATED HEREIN, (V) THE PHYSICAL CONDITION OF THE PROPERTY, (VI) THE CONDITION OF TITLE TO THE PROPERTY, AND (VII) ANY ENVIRONMENTAL MATTERS WITH RESPECT TO THE PROPERTY, INCLUDING THE PRESENCE OR ABSENCE OF ANY SO-CALLED “HAZARDOUS SUBSTANCES” OR “HAZARDOUS MATERIALS” AS THE SAME MAY BE DEFINED OR UNDERSTOOD TO EXIST UNDER ANY FEDERAL, STATE OR MUNICIPAL LAW, RULE, REGULATION OR ORDINANCE. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTFOR THE EXPRESS REPRESENTATIONS, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT PROPERTY AND THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” EXCESS DEVELOPMENT RIGHTS BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND THE EXCESS DEVELOPMENT RIGHTS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING CONNECTION WITH ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE DILIGENCE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) AGREES THAT IT SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED RELY SOLELY ON CONCORD’S ITS OWN INDEPENDENT INVESTIGATION INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the ClosingEXPRESS REPRESENTATIONS.
Appears in 1 contract
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY (a) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD SELLER NOR ANY OTHER SELLER PARTY, NOR ANY OTHER PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIRE) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED PARTIES”) , HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THAT ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED SELLER PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROMTHEREFROM , EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN CONNECTION WITH ITS DUE DILIGENCE AND AGREES THAT IT SHALL RELY SOLELY ON ITS OWN INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION AND THE REPRESENTATIONS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED SOLELY ON CONCORD’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Boston Properties Inc)
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY (a) (i) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS MATERIALS, IF ANY, REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT ORCONSULTANT, CONTRACTOR, BROKER, SALESPERSON, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD SELLER, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIREPURCHASER) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OR DEVELOPMENT OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED SOLELY ON CONCORD’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the Closing.
Appears in 1 contract
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE (a) PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT (THE “EXPRESS REPRESENTATIONS”), NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD OTHER SELLER PARTY, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIRE) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, THE AVAILABILITY OR AMOUNT OF ANY TAX CREDITS, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THAT ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED SELLER PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING CONNECTION WITH ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE DILIGENCE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) AGREES THAT IT SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED RELY SOLELY ON CONCORD’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE INDEPENDENTLY DEVELOPED OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREINVERIFIED INFORMATION. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the Closing.20
Appears in 1 contract
Samples: Purchase and Sale Agreement
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE (a) PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT (THE “EXPRESS REPRESENTATIONS”), NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD OTHER SELLER PARTY, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIRE) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, THE AVAILABILITY OR AMOUNT OF ANY TAX CREDITS, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THAT ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED SELLER PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING CONNECTION WITH ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE DILIGENCE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) AGREES THAT IT SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED RELY SOLELY ON CONCORD’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE INDEPENDENTLY DEVELOPED OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the ClosingVERIFIED INFORMATION.
Appears in 1 contract
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY (a) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT ORCONSULTANT, CONTRACTOR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD SELLER, AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIREPURCHASER) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD EXCULPATED SELLER PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTY, THE PERMITTED USE OF THE CONCORD PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTY, OR OTHERWISE RELATING TO THE CONCORD PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE PURCHASER FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THAT ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED SELLER PARTIES HAVE BEEN PROVIDED PROVIDED, EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED SELLER PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. CONCORD EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF SUBJECT TO THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY TERMS OF THE FOREGOING PARTIES (EMPIRE SENTENCE, PURCHASER EXPRESSLY DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN CONNECTION WITH ITS DUE DILIGENCE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) AGREES THAT IT SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED RELY SOLELY ON CONCORD’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE INDEPENDENTLY DEVELOPED OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the ClosingVERIFIED INFORMATION.
Appears in 1 contract
Samples: Escrow Agreement (Sothebys)
CONDITION OF THE PROPERTY; REPRESENTATIONS. EMPIRE EXPRESSLY (a) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER CONCORD SELLER, NOR ANY PERSON ACTING ON BEHALF OF CONCORD SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY EMPIRE PURCHASER IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT ORCONSULTANT, CONTRACTOR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (CONCORD SELLER, SELLER RELATED PARTIES AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN EMPIREPURCHASER) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “CONCORD "EXCULPATED PARTIES”") HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE CONCORD PROPERTYPROPERTIES, THE PERMITTED USE OF THE CONCORD PROPERTY PROPERTIES OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE CONCORD PROPERTY PROPERTIES THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE CONCORD PROPERTYPROPERTIES, OR OTHERWISE RELATING TO THE CONCORD PROPERTY PROPERTIES OR THE TRANSACTIONS CONTEMPLATED HEREIN. EMPIRE FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH PROVIDED IN THIS AGREEMENT, PURCHASER FURTHER ACKNOWLEDGES THAT ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE CONCORD EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EMPIRE AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST CONCORD SELLER OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. EMPIRE, AS A MEMBER OF PURCHASER IS ACQUIRING THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE CONCORD PROPERTY “AS IS” PROPERTIES BASED SOLELY ON EMPIRE’S ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE CONCORD PROPERTY PROPERTIES AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY CONCORD SELLER, OR ANY OF THE OTHER CONCORD EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS AND COVENANTS EXPRESSLY SET FORTH HEREIN. CONCORD PURCHASER EXPRESSLY ACKNOWLEDGES THAT, DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY SELLER IN CONNECTION WITH ITS DUE DILIGENCE AND AGREES THAT IT SHALL RELY SOLELY ON ITS OWN INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION EXCEPT AS EXPRESSLY SET FORTH PROVIDED IN THIS AGREEMENT, NEITHER EMPIRE NOR ANY PERSON ACTING ON BEHALF OF EMPIRE NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY CONCORD IN CONDUCTING ITS DUE DILIGENCE, NOR ANY DIRECT OR INDIRECT OFFICER, DIRECTOR, PARTNER, MEMBER, SHAREHOLDER, EMPLOYEE, AGENT, REPRESENTATIVE, ACCOUNTANT, ADVISOR, ATTORNEY, PRINCIPAL, AFFILIATE, CONSULTANT OR, SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES (EMPIRE AND ALL OF THE OTHER PARTIES DESCRIBED IN THE PRECEDING PORTIONS OF THIS SENTENCE (OTHER THAN CONCORD) SHALL BE REFERRED TO HEREIN COLLECTIVELY AS THE “EMPIRE EXCULPATED PARTIES”) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE EMPIRE OPERATIONS OR THE LAWS, REGULATIONS AND RULES APPLICABLE THERETO, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE EMPIRE OPERATIONS, OR OTHERWISE RELATING TO THE EMPIRE OPERATIONS OR THE TRANSACTIONS CONTEMPLATED HEREIN. CONCORD FURTHER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE EMPIRE EXCULPATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CONCORD SHALL NOT HAVE ANY RECOURSE AGAINST EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. CONCORD, AS A MEMBER OF THE COMPANY, SHALL DIRECT THE COMPANY TO ACCEPT THE EMPIRE OPERATIONS “AS IS” BASED SOLELY ON CONCORD’S OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE EMPIRE OPERATIONS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY EMPIRE OR ANY OF THE OTHER EMPIRE EXCULPATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. The delivery of items specified in Section 14.1 and 14.3 of this Agreement, and the acceptance thereof by Empire or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Concord to be performed hereunder, except those obligations of Concord which are expressly stated in this Agreement to survive the Closing. The delivery of items specified in Section 14.2 and 14.3 of this Agreement, and the acceptance thereof by Concord or the Company, as applicable, shall be deemed the full performance and discharge of every obligation on the part of Empire to be performed hereunder, except those obligations of Empire which are expressly stated in this Agreement to survive the Closing.DOC ID - 21031260.28
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