Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOF) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASER. UPON CLOSING, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.
Appears in 6 contracts
Samples: Operating Agreement (Mack Cali Realty L P), Operating Agreement (Mack Cali Realty L P), Operating Agreement (Mack Cali Realty L P)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S 'S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND OR THE TENANTS (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED(h) THE STATUS OF ANY ENTITLEMENTS FOR THE DEVELOPMENT OF FUTURE IMPROVEMENTS ON THE REAL PROPERTY, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “"AS IS” " AND “"WHERE IS,” ", WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser's consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the date hereof, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser has conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deemed necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERPurchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser's inspections and investigations. UPON CLOSINGPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSpresent and future environmental health conditions on, INCLUDINGor resulting from the ownership or operation of, BUT NOT LIMITED TOthe Property. Purchaser acknowledges and agrees that upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSSeller will sell and convey to Purchaser, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THATand Purchaser will accept the Property, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “"AS IS, WHERE IS,” WITH ALL FAULTS" with all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “Purchaser acknowledges that the Purchase Price reflects the "AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS" nature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser's counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Maguire Properties Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE INSPECTION PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. AND THE DOCUMENTS. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, BY WHICH EXCEPTIONS SHALL APPLY TO ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED5.5, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION REPRESENTATION, WARRANTY OR WARRANTY STATEMENT OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS REPRESENTATIONS, WARRANTIES OR WARRANTIES STATEMENTS HAVE BEEN MADEMADE EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY WARRANTY, STATEMENTS OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES WARRANTIES, REPRESENTATIONS, STATEMENTS OR REPRESENTATIONS ASSURANCES OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH PROVIDED IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate and the other types of interests contemplated to be sold hereunder, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on the express representations and warranties contained in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement), the Closing Documents and its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the expiration of the Inspection Period, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the specific matters represented by Seller in Section 8.1 HEREOFof this Agreement (as limited by Section 16.1 of this Agreement and the Closing Documents) NOR OF ANY OFFICERor any of its Affiliates, DIRECTORor any of their respective partners, EMPLOYEEmembers, AGENT OR ATTORNEY OF SELLERowners, officers, directors, employees, agents, representatives or attorneys. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser except as expressly provided in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) or the Closing Documents. Subject to the express representations and warranties contained in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) and in the Closing Documents, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERupon Closing, Purchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. UPON CLOSINGPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSpresent and future environmental health conditions on, INCLUDINGor resulting from the ownership or operation of, BUT NOT LIMITED TOthe Property. Purchaser acknowledges and agrees that upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSexcept as expressly set forth to the contrary in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) and in the Closing Documents, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THATSeller will sell and convey to Purchaser, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTYand Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, any Affiliate of Seller, any agent of Seller or its Affiliates or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, except for the express representations and warranties contained in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) and in the Closing Documents. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing without limitation and will not merge with the provisions of any Closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (KBS Real Estate Investment Trust II, Inc.)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED8.1, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO THE REAL PROPERTY OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS AGREEMENTSECTION 8.1, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated owner of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSIn addition, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFon behalf of itself and its Affiliates, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER acknowledges and agrees that, except for the representations and warranties expressly set forth in this Agreement, the Deed, the General Conveyance or other Closing Documents, it is not acting (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION including, as applicable, by entering into this Agreement or consummating the Sale) in reliance on: (i) any representation or warranty, express or implied; (ii) any estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to Purchaser or any of its Affiliates or Representatives, including any materials or information made available in the electronic data room hosted by or on behalf of Seller in connection with the Sale, in connection with presentations by Seller or in any other forum or setting; or (iii) the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information; provided, however, that the foregoing in no way diminishes Tenant’s right to rely upon data Seller has provided to Purchaser in connection with the discharge of Seller’s obligations under the Lease to the extent provided in the Lease. Purchaser has conducted, and will conduct, such inspections, investigations and other independent examinations of the Property and related matters as Purchaser deems necessary, including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (excluding the limited specific matters represented by Seller in Section 8.1 HEREOFor elsewhere in this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERexcept for the Lease, ANY AGENT OF SELLER OR ANY THIRD PARTYthere are no oral agreements, warranties or representations, collateral to or affecting the Property, by Seller, any Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein or in the Lease. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property, and, except as provided in this Agreement, nothing in this Agreement may be construed to diminish Seller’s or Purchaser’s rights or obligations under the Lease, including, without limitation, with respect to the physical and environmental conditions on or otherwise affecting the Property to the extent provided in the Lease. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTIONand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth in this Agreement. Seller and Purchaser acknowledge and agree that this Agreement in no way alters or otherwise affects the Lease or the Reserved Lease Rights, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYexcept as otherwise provided herein. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN._________________ Purchaser Initials
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY20 and that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. EXCEPT WITH RESPECT TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER EXPRESS REPRESENTATIONS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT WARRANTIES OF SELLER AND PURCHASERSET FORTH IN PARAGRAPH 11, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF-, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED, PURCHASER BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADEITS RESPECTIVE AGENTS. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER EXCEPT WITH RESPECT TO THE STATUS COVENANTS, REPRESENTATIONS AND WARRANTIES OF TITLE TO OR THE MAINTENANCESELLER SET FORTH IN PARAGRAPH 11 AND 13, REPAIRBUYER IS RELYING SOLELY UPON BUYER’S OWN, CONDITIONINDEPENDENT INSPECTION, DESIGN OR MARKETABILITY INVESTIGATION AND ANALYSIS OF THE PROPERTYPROPERTY AS BUYER DEEMS NECESSARY OR APPROPRIATE IN SO ACQUIRING THE PROPERTY FROM SELLER, OR INCLUDING, WITHOUT LIMITATION, AN ANALYSIS OF ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO AND ALL MATTERS CONCERNING THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND ITS SUITABILITY FOR BUYER’S INTENDED PURPOSES, AND A REVIEW OF ALL APPLICABLE LAWS, ORDINANCES, RULES AND GOVERNMENTAL REGULATIONS (gINCLUDING, BUT NOT LIMITED TO, THOSE RELATIVE TO BUILDING, ZONING AND LAND USE) AFFECTING THE COMPLIANCE DEVELOPMENT, USE, OCCUPANCY OR LACK THEREOF ENJOYMENT OF THE REAL PROPERTY OR PROPERTY. UPON CLOSING, EXCEPT TO THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING EXTENT OF THE EXPRESS INTENTION REPRESENTATIONS AND WARRANTIES OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOF) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASER. UPON CLOSING, PURCHASER WILL BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASERBUYER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER BUYER ACKNOWLEDGES AND AGREES THAT, THAT UPON ELECTRONIC ARTS INC. CLOSING, SELLER WILL SHALL SELL AND CONVEY TO PURCHASER, BUYER AND PURCHASER WILL BUYER SHALL ACCEPT THE PROPERTY, PROPERTY “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES , EXCEPT TO THE EXTENT OF THE EXPRESS REPRESENTATIONS AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTYIN THIS AGREEMENT. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREININ THIS AGREEMENT. PURCHASER ACKNOWLEDGES WITHOUT LIMITING THE FOREGOING, EXCEPT TO THE EXTENT OF THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER IN THIS AGREEMENT, SELLER SHALL HAVE NO LIABILITY TO BUYER WITH RESPECT TO (A) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE PROPERTY, (B) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY, (C) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE (BUYER AFFIRMING THAT BUYER HAS NOT RELIED ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PURCHASE PRICE REFLECTS PROPERTY IS FIT FOR ANY PARTICULAR PURPOSE), (D) TAX CONSEQUENCES, (E) THE “AS ISCONTENT OR ACCURACY OF ANY REPORT, WHERE IS” NATURE STUDY, OPINION OR CONCLUSION OF ANY SOILS, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF, (F) THE CONTENT OR ACCURACY OF ANY INFORMATION RELEASED TO BUYER BY AN ENGINEER OR PLANNER IN CONNECTION WITH THE DEVELOPMENT OF THE PROPERTY, OR (G) THE CONTENT OR ACCURACY OF THE DOCUMENTS AND MATERIALS AND ANY OTHER INFORMATION GIVEN TO BUYER BY SELLER WITH RESPECT TO THE PROPERTY, AND BUYER HEREBY RELEASES SELLER FROM ANY LIABILITY ARISING OUT OF ANY CLAIM RELATED TO ANY OF THE FOREGOING MATTERS SET FORTH IN THIS SECTION 12.1. THE TERMS AND CONDITIONS OF THIS SALE PARAGRAPH 12.1 SHALL EXPRESSLY SURVIVE THE CLOSE OF ESCROW AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY SHALL NOT BE ASSOCIATED MERGED WITH THE PROPERTYDEED. PURCHASER, WITH PURCHASER’S COUNSEL, BUYER HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THEIR THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN IN THIS AGREEMENT ARE AN INTEGRAL PART OF THIS AGREEMENT, AGREEMENT AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS THIS DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BUYER ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY SELLER OF THE REPRESENTATION LEGAL COUNSEL AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 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 favor at the time of ELECTRONIC ARTS INC. executing the release, which if known by him must have materially affected his settlement with the debtor.” BUYER EXPRESSLY WAIVES AND RELINQUISHES ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO ALL RIGHTS OR BENEFITS IT MAY HAVE UNDER, OR WHICH MAY BE CONFERRED UPON IT BY, THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE TO THE FULLEST EXTENT THAT IT MAY LAWFULLY WAIVE SUCH RIGHTS OR BENEFITS PERTAINING TO THE SUBJECT MATTER OF THIS RELEASE. BUYER’S INITIALS: XIII OPERATIONS DURING ESCROW
Appears in 1 contract
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. AND THE DOCUMENTS. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, BY WHICH EXCEPTIONS SHALL APPLY TO ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED5.5, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION REPRESENTATION, WARRANTY OR WARRANTY STATEMENT OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS REPRESENTATIONS, WARRANTIES OR WARRANTIES STATEMENTS HAVE BEEN MADEMADE EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY WARRANTY, STATEMENT OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES WARRANTIES, REPRESENTATIONS, STATEMENTS OR REPRESENTATIONS ASSURANCES OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN ANY OF THE CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate and the other types of interests contemplated to be sold hereunder, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on the express representations and warranties contained in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) the Closing Documents and its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof, as limited by Section 16.1 of this Agreement, and the Closing Documents) NOR OF ANY OFFICERor any of its Affiliates, DIRECTORor any of their respective partners, EMPLOYEEmembers, AGENT OR ATTORNEY OF SELLERowners, officers, directors, employees, agents, representatives or attorneys. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser except as expressly stated in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement) or in the Closing Documents. Subject to the express representations and warranties contained in Section 8.1 of this Agreement (as limited by Section 16.1 of this Agreement), TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERor in the Closing Documents, upon Closing, Purchaser shall accept the Property subject to adverse matters, including, but not limited to, adverse physical and environmental conditions, which may not have been revealed by Purchaser’s inspections and investigations. UPON CLOSINGPurchaser acknowledges and agrees that upon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSexcept as expressly set forth in Section 8.1 (as limited by Section 16.1 of this Agreement) and in the Closing Documents, INCLUDINGSeller will sell and convey to Purchaser, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTYand Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, any Affiliate of Seller, any agent of Seller or its Affiliates or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, except as expressly set forth in Section 8.1 (as limited by Section 16.1 of this Agreement) and in the Closing Documents. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale, LIABILITIESand except as expressly set forth in Section 8.1 (as limited by Section 16.1 of this Agreement) and in the Closing Documents, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYincludes any faults, liabilities, defects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.3 will expressly survive the Closing without limitation and will not merge with the provisions of any Closing Documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER SELLERS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER SELLERS AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER SELLERS OR ANY OF SELLER’S SELLERS’ AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SELLERS SPECIFICALLY DISCLAIMSDISCLAIM, AND NEITHER SELLER SELLERS NOR ANY OF SELLER’S SELLERS’ AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER SELLERS OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER SELLERS AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Sellers (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Sellers herein or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Sellers. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSellers will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Sellers will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Sellers, an Affiliate of Sellers, any agent of Sellers or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSellers are not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Sellers would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Preferred Apartment Communities Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTIONS 8.1, 10.4(e) OR 11.1 (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 8.1 AND 16.1 HEREOF16.1), BY WHICH ALL OF ANY SELLER CERTIFICATE OR IN THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITEDCLOSING DOCUMENTS, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADEMADE OTHER THAN ANY SPECIFIC MATTERS REPRESENTED IN SECTIONS 8.1, 10.4(e) OR 11.1 (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1), ANY SELLER CERTIFICATE OR IN THE CLOSING DOCUMENTS. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER OTHER THAN ANY SPECIFIC MATTERS REPRESENTED IN SECTIONS 8.1, AND 10.4(e) OR 11.1 (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1), ANY SELLER CERTIFICATE OR IN THE CLOSING DOCUMENTS, AND, EXCEPT FOR ANY SPECIFIC MATTERS REPRESENTED IN SECTIONS 8.1, 10.4(e) OR 11.1 (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1), ANY SELLER CERTIFICATE OR IN THE CLOSING DOCUMENTS, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT FOR ANY SPECIFIC MATTERS REPRESENTED IN SECTIONS 8.1, 10.4(e) OR 11.1 (AS EXPRESSLY SET FORTH MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1), ANY SELLER CERTIFICATE OR IN THIS AGREEMENTTHE CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon expiration of the Property Approval Period, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein as limited by Section 16.1 or in the Closing Documents) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement and the Closing Documents, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations, except for any specific matters represented in Sections 8.1, 10.4(e) or 11.1, any Seller Certificate or in the Closing Documents. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, except for any specific matters represented in in Sections 8.1, 10.4(e) or 11.1, any Seller Certificate or in the Closing Documents. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any Closing Documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY OF THE CLOSING DOCUMENTS (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY OF THE CLOSING DOCUMENTS, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY OF THE CLOSING DOCUMENTS (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon expiration of the Property Approval Period, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein or in the Closing Documents, as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.The terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents. _/s/ JMP________Purchaser Initials
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cole Office & Industrial REIT (CCIT II), Inc.)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER SELLERS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER SELLERS AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION SECTIONS 8.1 AND 11.1 HEREOF (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITEDAGREEMENT), PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER SELLERS OR ANY OF SELLER’S SELLERS’ AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SELLERS SPECIFICALLY DISCLAIMSDISCLAIM, AND NEITHER SELLER SELLERS NOR ANY OF SELLER’S SELLERS’ AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, EXCEPT AS SET FORTH IN SECTIONS 8.1 AND 11.1 HEREOF, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER SELLERS OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTYPROPERTIES, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY DAL02:624104.4 LEGAL_US_W # 74790953.14 18 PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY PROPERTIES OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER SELLERS AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTIONS 8.1 AND 11.1 HEREOF (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY PROPERTIES WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that, except as set forth in Sections 8.1 and 11.1, as limited by Section 16.1 of this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Properties. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPurchaser has conducted such inspections, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYinvestigations and other independent examinations of the Properties and related matters as Purchaser deems necessary, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFincluding but not limited to the physical and environmental conditions thereof, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER and will rely upon same and not upon any statements of Sellers (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Sellers in Sections 8.1 HEREOFand 11.1, as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Sellers. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in Sections 8.1 and 11.1, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERas limited by Section 16.1 of this Agreement, Sellers will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSexcept for the limited specific matters represented by Sellers in Sections 8.1 and 11.1, INCLUDINGas limited by Section 16.1 of this Agreement, BUT NOT LIMITED TOPurchaser will assume the risk that adverse matters, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSincluding, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSbut not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Properties. Except the limited specific matters represented by Sellers in Sections 8.1 and 11.1, as limited by Section 16.1 of this Agreement, Purchaser acknowledges and agrees that upon Closing, Sellers will sell and convey to Purchaser, and Purchaser will accept the Properties, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSExcept the limited specific matters represented by Sellers in Sections 8.1 and 11.1, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERas limited by Section 16.1 of this Agreement, ANY AGENT OF SELLER OR ANY THIRD PARTYPurchaser further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Properties, by Sellers, an Affiliate of Sellers, any agent of Sellers or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSellers are not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Properties furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Except for the limited specific matters represented by Sellers in Sections 8.1 and 11.1, as limited by Section 16.1 of this Agreement, Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Properties. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth DAL02:624104.4 LEGAL_US_W # 74790953.14 19 herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Sellers would not have agreed to sell the Properties to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER 16 HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in Section 8.1 of this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, any Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (HGR Liquidating Trust)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED8.1, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO THE REAL PROPERTY OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY 21 PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS AGREEMENTSECTION 8.1, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSIn addition, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFon behalf of itself and its Affiliates, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER acknowledges and agrees that, except for the representations and warranties expressly set forth in this Agreement, it is not acting (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFincluding, as applicable, by entering into this Agreement or consummating the Sale) NOR OF ANY OFFICERin reliance on: (i) any representation or warranty, DIRECTORexpress or implied; (ii) any estimate, EMPLOYEEprojection, AGENT OR ATTORNEY OF SELLERprediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to Purchaser or any of its Affiliates or Representatives, including any materials or information made available in the electronic data room hosted by or on behalf of Seller in connection with the Sale, in connection with presentations by Seller or in any other forum or setting; or (iii) the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser has conducted, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSand will conduct, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERsuch inspections, investigations and other independent examinations of the Property and related matters as Purchaser deems necessary, including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (excluding the limited specific matters represented by Seller in Section 8.1) or of any Affiliate, officer, director, employee, agent or attorney of Seller. UPON CLOSINGPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSexcept as set forth in this Agreement, INCLUDINGSeller will not be deemed to have represented or warranted the completeness, BUT NOT LIMITED TOtruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSPurchaser will assume the risk that adverse matters, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSincluding, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, any Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth in this Agreement.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, . THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE MATTERS EXPRESSLY REPRESENTED IN SECTION 8.1 HEREOF AND 16.1 HEREOFREPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN ANY DOCUMENTS DELIVERED BY SELLER TO PURCHASER (OR TO ESCROW AGENT TO BE HELD BY ESCROW AGENT FOR PURCHASER IN THE EVENT OF CLOSING) AT OR BEFORE CLOSING (COLLECTIVELY, THE “SELLER CLOSING DOCUMENTS”), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. EXCEPT FOR REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY CONTAINED IN THIS AGREEMENT AND IN ANY SELLER CLOSING DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT OR IN ANY SELLER CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH IS,”WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS EXPRESSLY REPRESENTED BY SELLER IN SECTION 8.1 HEREOFHEREOF OR EXPRESSLY REPRESENTED IN ANY SELLER CLOSING DOCUMENTS) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASER. SUBJECT TO ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 AND IN ANY SELLER CLOSING DOCUMENTS, UPON CLOSING, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. SUBJECT TO ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 8.1 AND IN ANY SELLER CLOSING DOCUMENTS, PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. NOTWITHSTANDING THE PRECEDING SENTENCE, (i) SUBJECT TO SECTION 8.3, THE PROVISIONS OF THE PRECEDING SENTENCE SHALL NOT APPLY TO ANY BREACH OF A REPRESENTATION OR WARRANTY EXPRESSLY SET FORTH IN SECTION 8.1 BELOW OR IN ANY SELLER CLOSING DOCUMENT, AND (ii) IF PURCHASER OR ANY OF PURCHASER’S AFFILIATES IS THE SUBJECT OF ANY CLAIM OR CAUSE OF ACTION BY A THIRD PARTY UNAFFILIATED WITH PURCHASER THAT ALLEGES A WRONGFUL ACT BY SELLER DURING SELLER’S PERIOD OF OWNERSHIP OF THE PROPERTY, THEN PURCHASER OR PURCHASER’S AFFILIATES, AS APPLICABLE, MAY SEEK CONTRIBUTORY DAMAGES FROM SELLER WITH RESPECT TO SUCH CLAIM OR CAUSE OF ACTION. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND AND, EXCEPT FOR THE PROVISIONS OF THE PRECEDING SENTENCE THAT ARE LIMITED AS SET FORTH IN SECTION 8.3, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED DEEDS AS FULLY AS IF SET FORTH AT LENGTH THEREIN.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Mack Cali Realty Corp)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF 17 THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand 18 that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Preferred Apartment Communities Inc)
Sale “As Is”. EXCEPT FOR THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER EXPRESS REPRESENTATIONS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED WARRANTIES SET FORTH IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITEDAGREEMENT), PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.1 HEREOF (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF 20289493.10 14 CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE IMPROVEMENTS REAL PROPERTY OR THE PERSONAL PROPERTYIMPROVEMENTS, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND PROPERTY, (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED(H) THE STATUS OF ANY ENTITLEMENTS FOR THE DEVELOPMENT OF FUTURE IMPROVEMENTS ON THE REAL PROPERTY, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is relying solely on its own judgment and the expertise of Purchaser’s consultants in purchasing the Property. Prior to the expiration of the Due Diligence Period, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEPurchaser represents and agrees that it will have conducted such inspections, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (excluding the specific matters represented by Seller in Section 8.1 hereof, as limited by Section 16.1 of this Agreement) or of any Affiliate, officer, director, employee, agent, broker or attorney of Seller. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYtruth or accuracy of any of the Due Diligence Materials or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFPurchaser will assume the risk that adverse matters, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOF) NOR OF ANY OFFICERincluding, DIRECTORbut not limited to, EMPLOYEEadverse physical and environmental conditions, AGENT OR ATTORNEY OF SELLERmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSpresent and future environmental health conditions on, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERor resulting from the ownership or operation of, the Property. UPON CLOSINGPurchaser acknowledges and agrees that upon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSSeller will sell and convey to Purchaser, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTYand Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically and expressly set forth in this Agreement. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.The terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents. 20289493.10 15
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Allegiant Travel CO)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION SECTIONS 8.1 AND 11.1 HEREOF (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITEDAGREEMENT), PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, EXCEPT AS SET FORTH IN SECTIONS 8.1 AND 11.1 HEREOF, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTIONS 8.1 AND 11.1 HEREOF (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that, except as set forth in Sections 8.1 and 11.1, as limited by Section 16.1 of this Agreement, it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon expiration of the Property Approval Period, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Sections 8.1 HEREOFand 11.1, as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in Sections 8.1 and 11.1, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERas limited by Section 16.1 of this Agreement, Seller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSexcept for the limited specific matters represented by Seller in Sections 8.1 and 11.1, INCLUDINGas limited by Section 16.1 of this Agreement, BUT NOT LIMITED TOPurchaser will assume the risk that adverse matters, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSincluding, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSbut not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Except for the limited specific matters represented by Seller in Sections 8.1 and 11.1, as limited by Section 16.1 of this Agreement, Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Global REIT, Inc.)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT “Where Is”. BUYER REPRESENTS THAT IT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTYINSPECTED, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED WILL HAVE THE OPPORTUNITY TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTINSPECT, THE PROPERTY ASSETS AND IF Mid: 010628\000101\905583.7 CLOSING OCCURS, WILL BE CONVEYED ACCEPT THE PHYSICAL AND TRANSFERRED TO PURCHASER IN ITS PRESENT ENVIRONMENTAL CONDITION AND STATE OF REPAIR, SAME ON AN “AS IS” AND “-WHERE IS,” WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEBASIS, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED BUYER FOREVER RELEASES SELLER FROM ANY LIABILITY WITH RESPECT TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFCONDITION OF THE ASSETS AT THE CLOSING, REGARDLESS OF WHETHER CAUSED BY OR ATTRIBUTABLE TO SELLER’S SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE, FAULT, OR STRICT LIABILITY, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS REGARDLESS OF SELLER (EXCLUDING WHETHER ARISING DURING THE LIMITED MATTERS REPRESENTED BY SELLER PERIOD OF, OR FROM, OR IN SECTION 8.1 HEREOF) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF CONNECTION WITH SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY ’S OWNERSHIP OF THE DOCUMENTS ASSETS OR OTHER SUCH INFORMATION HERETOFORE USE OF THE PROPERTY DESCRIBED IN THE LEASES BEFORE OR HEREAFTER FURNISHED AT THE CLOSING. WITHOUT LIMITING THE FOREGOING, BUYER WAIVES ANY RIGHT TO PURCHASER. UPON CLOSINGRECOVER FROM ANY SELLER AND FOREVER RELEASES AND DISCHARGES SELLER AND AGREES TO RELEASE, PURCHASER WILL ASSUME INDEMNIFY, DEFEND AND HOLD SELLER INDEMNITEES HARMLESS FROM ANY AND ALL DAMAGES, CLAIMS, LOSSES, LIABILITIES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS AND EXPENSES WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND COSTS, WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, THAT MAY ARISE ON ACCOUNT OF OR IN ANY WAY BE CONNECTED WITH THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT CONDITION OF THE PROPERTY, “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING ASSETS AT THE PROPERTY BY SELLER, ANY AGENT OF SELLER CLOSING OR ANY THIRD PARTY. SELLER IS NOT LIABLE LAW OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING REGULATION APPLICABLE TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTIONASSETS, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACTACT OF 1980, AS AMENDED (42 U.S.C. § 9601 et. seq.), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976 (42 U.S.C. § 6901 et. seq.), THE CLEAN WATER ACT (33 U.S.C. §§ 466 et. seq.), THE SAFE DRINKING WATER ACT (14 U.S.C. §§ 1401-1450), THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. § 7401 et. seq.), AS AMENDED, THE CLEAN AIR ACT AMENDMENTS OF 1990, AND ANY OTHER APPLICABLE FEDERAL, STATE OR LOCAL LAW, REGARDLESS OF WHETHER ARISING DURING THE PERIOD OF, OR FROM, OR IN CONNECTION WITH, SELLER’S OWNERSHIP OF THE ASSETS OR USE OF THE PROPERTY DESCRIBED IN THE LEASES AT OR PRIOR TO THE CLOSING, AND REGARDLESS OF WHETHER ATTRIBUTABLE TO THE STRICT LIABILITY OF SELLER OR TO THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OF SELLER, EVEN IF CAUSED BY VIRTUE THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY COMMON LAW RIGHTSELLER PRIOR TO CLOSING. NOTWITHSTANDING THE FOREGOING, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO BUYER AND SELLER AGREE THAT THE PROPERTY. THE TERMS AND CONDITIONS PROVISIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE 17.02 ARE ALSO SUBJECT TO AND LIMITED BY THE TERMINATION EXPRESS OBLIGATIONS OF SELLER CONTAINED IN THIS AGREEMENT TO THE EXTENT THAT ANY OF THE FOREGOING RELATE TO THE PHYSICAL OR ENVIRONMENTAL CONDITION OF THE ASSETS AT THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.
Appears in 1 contract
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER COMPANY, SELLERS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER COMPANY, SELLERS AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 THIS AGREEMENT AND 16.1 HEREOF, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 ARE LIMITEDCLOSING DOCUMENTS, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY 25 OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER COMPANY, SELLERS OR ANY OF SELLER’S SELLERS’ AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER COMPANY AND SELLERS SPECIFICALLY DISCLAIMSDISCLAIM, AND NEITHER SELLER COMPANY, SELLERS NOR ANY OF SELLERSELLERS’ OR COMPANY’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, EXCEPT AS SET FORTH IN THIS AGREEMENT AND THE CLOSING DOCUMENTS, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER COMPANY AND SELLERS OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO THE REAL PROPERTY OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER COMPANY, SELLERS AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS AGREEMENTAGREEMENT OR THE CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSIn addition, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFon behalf of itself and its Affiliates, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER acknowledges and agrees that, except for the representations and warranties expressly set forth in this Agreement or the Closing Documents, it is not acting (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFincluding, as applicable, by entering into this Agreement or consummating the West Coast Asset Sale) NOR OF ANY OFFICERin reliance on: (i) any representation or warranty, DIRECTORexpress or implied; (ii) any estimate, EMPLOYEEprojection, AGENT OR ATTORNEY OF SELLERprediction, data, financial information, memorandum, presentation or other materials or information provided or addressed to Purchaser or any of its Affiliates or Representatives, including any materials or information made available in the electronic data room hosted by or on behalf of Company and Sellers in connection with the West Coast Asset Sale, in connection with presentations by Company’s management or in any other forum or setting; or (iii) the accuracy or completeness of any other representation, warranty, estimate, projection, prediction, data, financial information, memorandum, presentation or other materials or information. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser has conducted such inspections, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERincluding but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Company or Sellers (excluding 26 the limited specific matters represented by Company or Sellers herein as limited by Section 18.1) or of any Affiliate, officer, director, employee, agent or attorney of Company or Sellers. UPON CLOSINGPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSexcept as set forth in this Agreement, INCLUDINGCompany and Sellers will not be deemed to have represented or warranted the completeness, BUT NOT LIMITED TOtruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSPurchaser will assume the risk that adverse matters, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSincluding, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Sellers will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Company, Sellers, any Affiliate of Sellers, any agent of Company or Sellers or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSCompany and Sellers are not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Company and Sellers would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimers and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN._/s/_TH________ Purchaser Initials
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE FINANCING APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOFTHIS AGREEMENT OR ANY CLOSING DOCUMENTS, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY CLOSING DOCUMENTS, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS 20 OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN THIS AGREEMENTAGREEMENT OR THE CLOSING DOCUMENTS, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT THE CONDITION AND STATE OF REPAIRREPAIR EXISTING ON THE EFFECTIVE DATE, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPurchaser is hereby deemed to have conducted such inspections, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFincluding but not limited to the physical and environmental conditions thereof, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Seller herein as limited by Section 16.1) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSeller will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Seller will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser has fully reviewed the disclaimers and waivers set forth in this Agreement, WITH PURCHASER’S COUNSELand understands the significance and effect thereof. Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any Closing Documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the date hereof, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser has conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deemed necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERPurchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. UPON CLOSINGPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSpresent and future environmental health conditions on, INCLUDINGor resulting from the ownership or operation of, BUT NOT LIMITED TOthe Property. Purchaser acknowledges and agrees that upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSSeller will sell and convey to Purchaser, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTYand Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.The terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents. /s/ Illegible
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Wells Real Estate Investment Trust Ii Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS WILL CONDUCT DURING THE RIGHT TO CONDUCT INSPECTION PERIOD ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTION 8.1 AND 16.1 HEREOFHEREOF OR THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.6 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, DISCLAIMS ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR MAY BE RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF ANY PORTION OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (ge) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENTAGREEMENT OR THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. DURING THE INSPECTION PERIOD, PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS INSPECTIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING INCLUDING, BUT NOT LIMITED TO TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFHEREOF OR THE DOCUMENTS DELIVERED BY SELLER AT CLOSING) NOR OR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED OR THAT WILL BE OBTAINED BY PURCHASER WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES, SOURCES AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERPURCHASER THAT WAS CREATED, PREPARED, COMPILED, OR AUTHORED BY ANY PERSON OR ENTITY OTHER THAN SELLER OR ANY OF ITS AFFILIATES. EXCEPT AS MAY BE EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, UPON CLOSING, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “AS IS, WHERE IS,” WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AGREEMENT, AND UNDERSTANDS THEIR THE SIGNIFICANCE AND EFFECT THEREOF. PURCHASER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOW, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 5.6 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED WILL BE INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.DEED. /s/ CRO Purchaser’s Initials
Appears in 1 contract
Samples: Purchase and Sale Agreement and Joint Escrow Instructions (Safeco Corp)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, AND FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THE DOCUMENTS DELIVERED BY SELLER AT THE CLOSING, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. EXCEPT AS SET FORTH IN THIS AGREEMENT OR IN THE DOCUMENTS DELIVERED BY SELLER AT THE CLOSING, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT) OR IN THE DOCUMENTS DELIVERED BY SELLER AT THE CLOSING, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the expiration of the Inspection Period, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser will have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERand in the documents delivered by Seller at the Closing, DIRECTORor of any Affiliate, EMPLOYEEofficer, AGENT OR ATTORNEY OF SELLERdirector, employee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERPurchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, INCLUDINGpresent and future environmental health conditions on, BUT NOT LIMITED TOor resulting from the ownership or operation of, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSthe Property. Purchaser acknowledges and agrees that upon Closing, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THATSeller will sell and convey to Purchaser, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTYand Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Except for the representations and warranties of Seller contained in this Agreement and the documents delivered by Seller at the Closing, Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.The terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents. ______________
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cb Richard Ellis Realty Trust)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF (AS LIMITED BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S 'S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND OR THE TENANTS (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED(h) THE STATUS OF ANY ENTITLEMENTS FOR THE DEVELOPMENT OF FUTURE IMPROVEMENTS ON THE REAL PROPERTY, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 OF THIS AGREEMENT (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “"AS IS” " AND “"WHERE IS,” ", WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser's consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSPrior to the date hereof, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser has conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deemed necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the limited specific matters represented by Seller in Section 8.1 HEREOFhereof as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller will not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. Upon Closing, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERPurchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser's inspections and investigations. UPON CLOSINGPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSpresent and future environmental health conditions on, INCLUDINGor resulting from the ownership or operation of, BUT NOT LIMITED TOthe Property. Purchaser acknowledges and agrees that upon Closing, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSSeller will sell and convey to Purchaser, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THATand Purchaser will accept the Property, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT THE PROPERTY, “"AS IS, WHERE IS,” WITH ALL FAULTS" with all faults. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Seller, an Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “Purchaser acknowledges that the Purchase Price reflects the "AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTS" nature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser's counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREIN.The terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents. _______RIG_____
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Maguire Properties Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASER, AND PURCHASER HAS THE RIGHT TO CONDUCT CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY, THE SALE INTERESTS AND THE DOCUMENTS. OTHER THAN THE SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 (AS LIMITED BY ARTICLE XVI) AND 16.1 HEREOFARTICLE XI, BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL SHALL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. EXCEPT AS SET FORTH IN SECTION 8.1 (AS LIMITED BY ARTICLE XVI) AND ARTICLE XI, SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER IT NOR ANY OF SELLER’S ITS AFFILIATES NOR ANY OTHER PERSON OR ENTITY IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, PURCHASER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE IMPROVEMENTS REAL PROPERTY, IMPROVEMENTS, THE FIXTURES OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY PROPERTY, THE TENANTS AND THE GROUP COMPANIES, (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS OR ANY PART THEREOF WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING REGULATIONS (h) THE VALIDITY OR HEREAFTER ENACTED ENFORCEABILITY OF ANY OF THE ORGANIZATIONAL DOCUMENTS OF ANY GROUP COMPANY AND (i) THE VALIDITY OR PROMULGATEDENFORCEABILITY OF ANY OF THE AMENITIES LOAN DOCUMENTS, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY WITHOUT LIMITING THE EXPRESS REPRESENTATIONS OF SELLER SET FORTH IN THIS AGREEMENTSECTION 8.1 (AS LIMITED BY ARTICLE XVI) AND ARTICLE XI, THE PROPERTY WILL BE CONVEYED AND SALE INTERESTS WHEN TRANSFERRED TO PURCHASER PURSUANT TO THIS AGREEMENT AND THE PROPERTY IN ITS PRESENT CONDITION AND STATE OF REPAIR, IN EACH CASE, ARE “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED SUBJECT TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFTERMS OF ARTICLE IX. Purchaser represents that it is a knowledgeable, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER experienced and sophisticated purchaser of real estate, and that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Sale Interests. Prior to the Effective Date, Purchaser has conducted such inspections, investigations and other independent examinations of the Property, each Group Company and their respective properties and assets and related matters as Purchaser deemed necessary, including the physical and environmental conditions thereof, and shall rely upon same and not upon any statements of Seller (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION excluding the specific matters represented by Seller in Section 8.1 HEREOFas limited by Article XVI, and Article XI) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Seller. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and Seller shall not be deemed to have represented or warranted the completeness, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESStruth or accuracy of any of the Documents or such other information heretofore or hereafter furnished to Purchaser (excluding the specific matters represented by Seller in Section 8.1 as limited by Article XVI, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERand Article XI). UPON CLOSINGSubject to Section 8.1 (subject to Article XVI) and Article XI, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSupon the Closing, INCLUDINGPurchaser shall assume the risk that adverse matters, BUT NOT LIMITED TOincluding adverse physical and environmental conditions, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSmay not have been revealed by Purchaser’s inspections and investigations. To the extent of the Sale Interests, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, present and future environmental health conditions on, or resulting from the ownership or operation of, the Property (it being acknowledged that the same shall not relieve Seller of its proportionate share (as a member of the Company from and after Closing) of any indirect cost or expense arising from the condition of the Property). PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser acknowledges and agrees that upon the Closing, UPON CLOSINGSeller shall sell and convey to Purchaser, SELLER WILL SELL AND CONVEY TO PURCHASERand Purchaser shall accept the Sale Interests (and indirectly, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property), “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults (excluding the specific matters represented by Seller in Section 8.1, as limited by Article XVI, and Article XI). PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Sale Interests, the Property, each Group Company and their respective properties and assets by Seller, any Affiliate of Seller, any agent of Seller or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSeller is not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Sale Interests, AGENTthe Property, EMPLOYEE OR OTHER PERSONeach Group Company and their respective properties and assets furnished by any real estate broker, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINagent, employee, servant or other Person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Sale Interests, the Property, each Group Company and their respective properties and assets (without limiting the specific matters represented by Seller in Section 8.1, as limited by Article XVI, and Article XI). PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Sale Interests to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 shall expressly survive the Closing or earlier termination of this Agreement and shall not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (New York REIT, Inc.)
Sale “As Is”. Purchaser acknowledges that Purchaser will have the opportunity to independently and personally inspect the Property and the Documents and that Purchaser has entered into this Agreement based upon its ability to make such examination and inspection. THE TRANSACTION CONTEMPLATED PROPERTY IS TO BE SOLD TO AND ACCEPTED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER AND PURCHASERPURCHASER AT CLOSING IN ITS THEN PRESENT CONDITION, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER AND PURCHASERAS IS, WHERE IS, WITH ALL FAULTS, AND PURCHASER HAS WITHOUT ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, EXCEPT FOR THE RIGHT TO CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. OTHER THAN THE MATTERS REPRESENTED EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 8.1 AND 16.1 OF THIS AGREEMENT, THE COVENANTS OF SELLER WHICH SURVIVE CLOSING PURSUANT TO THE TERMS HEREOF, AND THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER IN ANY DOCUMENT TO BE DELIVERED BY WHICH ALL OF SELLER TO PURCHASER AT CLOSING (COLLECTIVELY, THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 “SELLER WARRANTIES AND COVENANTS”). NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT IS UNDERSTOOD AND AGREED THAT, EXCEPT FOR THE SELLER WARRANTIES AND COVENANTS, SELLER, SELLER’S AFFILIATES, SELLER’S AGENTS, OR EMPLOYEES HAVE NOT MADE AND ARE LIMITEDNOT NOW MAKING, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLYTHEY SPECIFICALLY DISCLAIM, ANY REPRESENTATION OR WARRANTY OF SELLER OR ANY OF SELLER’S AGENTS OR REPRESENTATIVESWARRANTIES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SPECIFICALLY DISCLAIMS, AND NEITHER SELLER NOR ANY OF SELLER’S AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASER, AND NO WARRANTIES OR REPRESENTATIONS GUARANTIES OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER ORAL OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO WRITTEN, PAST, PRESENT OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWNFUTURE, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, INCLUDING WITHOUT LIMITATION ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, IT BEING THE EXPRESS INTENTION OF SELLER AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONS, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARY, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOF) NOR OF ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESS, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASER. UPON CLOSING, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ANY WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO (1) MATTERS OF TITLE; (2) ENVIRONMENTAL CONDITIONSMATTERS OF ANY KIND RELATING TO THE PROPERTY OR ANY PORTION THEREOF (INCLUDING THE CONDITION OF THE SOIL OR GROUNDWATER BENEATH THE PROPERTY OR THE PRESENCE OF HAZARDOUS SUBSTANCES IN OR ON, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT, UPON CLOSING, SELLER WILL SELL AND CONVEY TO PURCHASER, AND PURCHASER WILL ACCEPT UNDER OR IN THE VICINITY OF THE PROPERTY); (3) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, “AS ISPRESENT OR FUTURE FEDERAL, WHERE IS,” WITH ALL FAULTSSTATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS; OR (4) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY PARTICULAR PURPOSE. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE THAT, EXCEPT FOR THE SELLER WARRANTIES AND COVENANTS, SELLER IS UNDER NO ORAL AGREEMENTS, WARRANTIES DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES OR REPRESENTATIONS COLLATERAL INQUIRY REGARDING ANY MATTER WHICH MAY OR MAY NOT BE KNOWN TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER ITS PARTNERS, OFFICERS, DIRECTORS, CONTRACTORS, AGENTS OR ANY THIRD PARTYEMPLOYEES. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS IS, WHERE IS” NATURE PROVISIONS OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER, WITH PURCHASER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN SECTION ARE AN INTEGRAL A MATERIAL PART OF THE CONSIDERATION FOR SELLER’S ENTERING INTO THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTSHALL SURVIVE CLOSING. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser represents that it is a knowledgeable, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTIONexperienced and sophisticated purchaser of real estate. Purchaser shall conduct such inspections, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTIONinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAWincluding but not limited to the physical and environmental conditions thereof, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDand will rely upon same and not upon any statements of Seller (excluding the Seller Warranties and Covenants) or of any Affiliate, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS INofficer, ONdirector, UNDERemployee, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYagent or attorney of Seller. Purchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing.
Appears in 1 contract
Samples: Lease Guaranty Agreement (Hines Real Estate Investment Trust Inc)
Sale “As Is”. THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER SELLERS AND PURCHASER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER SELLERS AND PURCHASER, AND PURCHASER HAS CONDUCTED (OR WILL CONDUCT PRIOR TO THE RIGHT TO CONDUCT EXPIRATION OF THE PROPERTY APPROVAL PERIOD) ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY PURSUANT TO THIS ARTICLE V. PROPERTY. OTHER THAN THE ANY SPECIFIC MATTERS REPRESENTED IN SECTION 8.1 AND HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS MAY BE LIMITED HEREIN, INCLUDING BY SECTION 16.1 HEREOFOF THIS AGREEMENT), BY WHICH ALL OF THE FOLLOWING PROVISIONS OF THIS SECTION 5.4 5.5 ARE LIMITED, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER SELLERS OR ANY OF SELLER’S SELLERS’ AFFILIATES, AGENTS OR REPRESENTATIVES, AND PURCHASER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE. SELLER SELLERS SPECIFICALLY DISCLAIMSDISCLAIM, AND NEITHER SELLER SELLERS NOR ANY OF SELLER’S SELLERS’ AFFILIATES NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO PURCHASERPURCHASER AND, AND EXCEPT AS SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER SELLERS OR RELIED UPON BY PURCHASER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF PURCHASER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY PURCHASER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN KNOWN, OR UNKNOWN, OR LATENT, WITH RESPECT TO THE ANY REAL PROPERTY, IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY OR THE TENANTS AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE ANY REAL PROPERTY OR THE IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSREGULATIONS (INCLUDING, INCLUDING WITHOUT LIMITATION LIMITATION, ALL LAWS AND REGULATIONS PERTAINING TO ENVIRONMENTAL LAWS, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATEDMATTERS), IT BEING THE EXPRESS INTENTION OF SELLER SELLERS AND PURCHASER THAT, EXCEPT AS EXPRESSLY SET FORTH TO THE CONTRARY IN SECTION 8.1 HEREOF OR -19- IN ANY CLOSING DOCUMENT EXECUTED BY SELLER AT CLOSING (AS LIMITED BY SECTION 16.1 OF THIS AGREEMENT), THE PROPERTY WILL BE CONVEYED AND TRANSFERRED TO PURCHASER IN ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS,” ”, WITH ALL FAULTS. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLEPurchaser represents that it is a knowledgeable, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATEexperienced and sophisticated purchaser of real estate, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTYand that it is relying solely on its own expertise and that of Purchaser’s consultants in purchasing the Property. PURCHASER HAS BEEN GIVEN A SUFFICIENT OPPORTUNITY HEREIN TO CONDUCT AND HAS CONDUCTED OR WILL CONDUCT SUCH INSPECTIONSUpon the consummation of Closing, INVESTIGATIONS AND OTHER INDEPENDENT EXAMINATIONS OF THE PROPERTY AND RELATED MATTERS AS PURCHASER DEEMS NECESSARYPurchaser shall be deemed to have conducted such inspections, INCLUDING BUT NOT LIMITED TO THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOFinvestigations and other independent examinations of the Property and related matters as Purchaser deems necessary, AND WILL RELY UPON SAME AND NOT UPON ANY STATEMENTS OF SELLER including but not limited to the physical and environmental conditions thereof, and will rely upon same and not upon any statements of Sellers (EXCLUDING THE LIMITED MATTERS REPRESENTED BY SELLER IN SECTION 8.1 HEREOFexcluding the limited specific matters represented by Sellers herein or in any closing document executed by Seller at Closing as limited by Section 16.1 of this Agreement) NOR OF ANY OFFICERor of any Affiliate, DIRECTORofficer, EMPLOYEEdirector, AGENT OR ATTORNEY OF SELLERemployee, agent or attorney of Sellers. PURCHASER ACKNOWLEDGES THAT ALL INFORMATION OBTAINED BY PURCHASER WAS OBTAINED FROM A VARIETY OF SOURCESPurchaser acknowledges that all information obtained by Purchaser was obtained from a variety of sources and, AND SELLER WILL NOT BE DEEMED TO HAVE REPRESENTED OR WARRANTED THE COMPLETENESSexcept as set forth in this Agreement, TRUTH OR ACCURACY OF ANY OF THE DOCUMENTS OR OTHER SUCH INFORMATION HERETOFORE OR HEREAFTER FURNISHED TO PURCHASERSellers will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Documents or other such information heretofore or hereafter furnished to Purchaser. UPON CLOSINGUpon Closing, PURCHASER WILL ASSUME THE RISK THAT ADVERSE MATTERSPurchaser will assume the risk that adverse matters, INCLUDINGincluding, BUT NOT LIMITED TObut not limited to, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONSadverse physical and environmental conditions, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INSPECTIONS AND INVESTIGATIONSmay not have been revealed by Purchaser’s inspections and investigations. PURCHASER ACKNOWLEDGES AND AGREES THATPurchaser further hereby assumes the risk of changes in applicable Environmental Laws relating to past, UPON CLOSINGpresent and future environmental health conditions on, SELLER WILL SELL AND CONVEY TO PURCHASERor resulting from the ownership or operation of, AND PURCHASER WILL ACCEPT THE PROPERTYthe Property. Purchaser acknowledges and agrees that upon Closing, Sellers will sell and convey to Purchaser, and Purchaser will accept the Property, “AS IS, WHERE IS,” WITH ALL FAULTSwith all faults, subject to any rights granted to Purchaser hereunder which survive Closing with respect to Seller’s representations, warranties, covenants, agreements and obligations contained in this Agreement and/or in any closing document executed by Seller at Closing, as limited by Section 16.1 of this Agreement. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTSPurchaser further acknowledges and agrees that there are no oral agreements, WARRANTIES OR REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLERwarranties or representations, ANY AGENT OF SELLER OR ANY THIRD PARTYcollateral to or affecting the Property, by Sellers, an Affiliate of Sellers, any agent of Sellers or any third party. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTSSellers are not liable or bound in any manner by any oral or written statements, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKERrepresentations or information pertaining to the Property furnished by any real estate broker, AGENTagent, EMPLOYEE OR OTHER PERSONemployee, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREINservant or other person, unless the same are specifically set forth or referred to herein. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE Purchaser acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” NATURE OF THIS SALE AND ANY FAULTSnature of this sale and any faults, LIABILITIESliabilities, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTYdefects or other adverse matters that may be associated with the Property. PURCHASERPurchaser, WITH PURCHASER’S COUNSELwith Purchaser’s counsel, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT AND UNDERSTANDS THEIR SIGNIFICANCE AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENThas fully reviewed the disclaimers and waivers set forth in this Agreement, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENTand understands the significance and effect thereof. SUBJECT TO PURCHASER’S RIGHT TO BRING AN ACTION AGAINST SELLER PURSUANT TO SECTION 8.3 BELOW IN THE EVENT OF ANY BREACH BY SELLER OF THE REPRESENTATION AND WARRANTY PERTAINING TO ENVIRONMENTAL MATTERS SET FORTH IN SECTION 8.1 BELOWPurchaser acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, PURCHASER AND PURCHASER’S AFFILIATES FURTHER COVENANT AND AGREE NOT TO XXX SELLER AND SELLER’S AFFILIATES AND HEREBY RELEASE SELLER AND SELLER’S AFFILIATES OF AND FROM AND WAIVE ANY CLAIM OR CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR PURCHASER’S AFFILIATES MAY HAVE AGAINST SELLER OR SELLER’S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTYand that Sellers would not have agreed to sell the Property to Purchaser for the Purchase Price without the disclaimer and other agreements set forth in this Agreement. THE TERMS AND CONDITIONS OF THIS SECTION 5.4 WILL EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT OR THE CLOSING, AS THE CASE MAY BE, AND WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND ARE HEREBY DEEMED INCORPORATED INTO THE DEED AS FULLY AS IF SET FORTH AT LENGTH THEREINThe terms and conditions of this Section 5.5 will expressly survive the Closing and will not merge with the provisions of any closing documents.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Hines Real Estate Investment Trust Inc)
