THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTS. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIM, AND NEITHER SELLER NOR EAGL PARENT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership Interests, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership Interests. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase, Agreement of Sale and Purchase (CNL Income Properties Inc)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, CONDUCTED OR WILL CONDUCT, SHALL HAVE CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 SECTION 6.1 AND 7.2 9.7 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 6.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)9.7 HEREOF, SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER BUYER, IN EACH CASE WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf coursesand that, and that except with respect to the warranties expressly set forth herein, it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated herebyProperty. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related mattersmatters as Buyer may deem necessary, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of SellerSeller other than the matters represented in Sections 6.1 and 9.7 hereof or in the Closing Documents. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer, except as may be expressly provided in Section 6.1 hereof. Upon Closing, Buyer will assume the risk risk, as to matters other than the representations of Seller in Section 6.1 hereof that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Property, “AS IS, WHERE IS,” with all faults, except as may be expressly provided in Section 6.1 hereof. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER DISCLAIMERS AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.3.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTSDOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 2 contracts
Samples: Agreement of Purchase and Sale (Saul Centers Inc), Agreement of Purchase and Sale (Saul Centers Inc)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 SECTION 6.1 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, Section 6.1 (as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing6.2), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and and, except to the extent set forth in Section 6.1, Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Property, “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTSDOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 2 contracts
Samples: Agreement of Sale and Purchase, Agreement of Sale and Purchase (Fore Holdings LLC)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 SECTION 6.1 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 6.2 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO AND IN THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)DEED, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER'S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF SECTION 6.1, (AS LIMITED BY SECTION 6.2) AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)DEED, SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (aA) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bB) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (cC) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (dD) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (eE) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (fF) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (gG) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership Interests, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership Interests. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.IMPROVEMENTS WITH
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Behringer Harvard Short Term Opportunity Fund I Lp)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 6.1 AND 7.2 6.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.3 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 6.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, 6.2 (as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing6.3), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Property, “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER OTUER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTSDOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Bresler & Reiner Inc)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, SECTION 6.1 AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.2, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER'S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY MARKET ABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (ai) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (bii) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (ciii) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (div) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (ev) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (fvi) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (gvii) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “"AS IS” " AND “"WHERE IS”", WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s 's consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, Section 6.1 (as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing6.2), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse adverse, matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s 's inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “Property, "AS IS, WHERE IS,” " with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “"as is, where is” " nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S 'S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.2(b) WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTSDOCUMENTS AND WILL BE INCORPORATED INTO THE DEED.
Appears in 1 contract
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BY AND BETWEEN SELLER, EAGL PARENT ROCKPOINT AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT ROCKPOINT AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS CONDUCTED BUYER’S OWN INDEPENDENT EXAMINATION OF THE COMPANY, THE SUBSIDIARIES (INCLUDING PROPERTY OWNER) AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 6.1 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING“EXPRESS WARRANTIES”), BUYER HAS NOT RELIED UPON AND WILL SHALL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT ROCKPOINT OR ANY OF THEIR ROCKPOINT’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADEMADE OTHER THAN THE EXPRESS WARRANTIES. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT ROCKPOINT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND OTHER THAN THE EXPRESS WARRANTIES AND, OTHER THAN THE EXPRESS WARRANTIES, NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT ROCKPOINT OR RELIED UPON BY BUYER WITH RESPECT TO THE COMPANY, THE SUBSIDIARIES (INCLUDING PROPERTY OWNER) AND/OR THE PROPERTY, INCLUDING THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, FURTHER INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, LATENT OR PATENT, NOW OR HEREAFTER EXISTING, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTYCOMPANY, COWBOYS GOLF CLUB THE SUBSIDIARIES (INCLUDING PROPERTY OWNER) AND THE PROPERTY AND/OR THE COWBOYS OWNERSHIP INTERESTS AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL COMPANY, THE SUBSIDIARIES (INCLUDING PROPERTY OWNER) AND THE PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB ANY PORTION THEREOF WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT ROCKPOINT AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT ASSIGNED COMPANY MEMBERSHIP INTERESTS (AND THE XXXX OF SALE RELATED INDIRECT INTERESTS IN THE SUBSIDIARIES (INCLUDING PROPERTY OWNER) AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS PROPERTY) WILL BE CONVEYED AND TRANSFERRED TO BUYER IN ITS/THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership Interests, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership Interests. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Lightstone Real Estate Income Trust Inc.)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLERHEREBY SHALL BE WITHOUT ANY WARRANTY OR REPRESENTATION OF TITLE, EAGL PARENT AND BUYEREITHER EXPRESS, THIS AGREEMENT REFLECTS IMPLIED, STATUTORY OR OTHERWISE; WITHOUT ANY EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTY OR REPRESENTATION AS TO THE MUTUAL AGREEMENT CONDITION, QUANTITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM REDHIBITORY VICES OR DEFECTS, CONFORMITY TO MODELS OR SAMPLES OF SELLER, EAGL PARENT AND BUYER, AND BUYER HAS CONDUCTED, MATERIALS OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION MERCHANTABILITY OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTS. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS EQUIPMENT OR ITS FITNESS FOR ANY PURPOSE AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIM, AND NEITHER SELLER NOR EAGL PARENT NOR WITHOUT ANY OTHER PERSON IS MAKINGEXPRESS, ANY REPRESENTATIONIMPLIED, STATUTORY OR OTHER WARRANTY OR ASSURANCE WHATSOEVER REPRESENTATION WHATSOEVER. BUYER SHALL HAVE INSPECTED OR WAIVED ITS RIGHT TO BUYER INSPECT THE INTERESTS FOR ALL PURPOSES AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT SATISFIED ITSELF AS TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, THEIR PHYSICAL CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOFBOTH SURFACE AND SUBSURFACE, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT CONDITIONS SPECIFICALLY RELATED TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS ANY WELL CASE, TUBING OR DOWNHOLE EQUIPMENT. BUYER IS RELYING SOLELY UPON ITS OWN INSPECTION OF THE PROPERTYINTERESTS, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS AND (g) THE COMPLIANCE OR LACK THEREOF BUYER SHALL ACCEPT ALL OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER SAME IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests “"AS IS, WHERE IS,” with all faults" CONDITION. Buyer further acknowledges and agrees that there are no oral agreementsIN ADDITION, warranties or representationsSELLER MAKES NO WARRANTY OR REPRESENTATION, collateral to or affecting the Property or Cowboys Ownership InterestsEXPRESS, by SellerIMPLIED, EAGL ParentSTATUTORY OR OTHERWISE, any agent of Seller or EAGL Parent or any third partyAS TO THE ACCURACY OR COMPLETENESS OF ANY DATA, REPORTS, RECORDS, PROJECTIONS, INFORMATION OR MATERIALS NOW, HERETOFORE OR HEREAFTER FURNISHED OR MADE AVAILABLE TO BUYER IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY DESCRIPTION OF THE INTERESTS, PRICING ASSUMPTIONS, OR QUALITY OR QUANTITY OF HYDROCARBON RESERVES (IF ANY) ATTRIBUTABLE TO THE INTERESTS OR THE ABILITY OR POTENTIAL OF THE INTERESTS TO PRODUCE HYDROCARBONS OR ANY OTHER MATTERS CONTAINED IN THE PROPRIETARY DATA OR ANY OTHER MATERIALS FURNISHED OR MADE AVAILABLE TO BUYER BY SELLER OR BY SELLER'S AGENTS OR REPRESENTATIVES. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statementsANY AND ALL SUCH DATA, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate brokerRECORDS, agentREPORTS, employeePROJECTIONS, servant or other personINFORMATION AND OTHER MATERIALS FURNISHED BY SELLER OR OTHERWISE MADE AVAILABLE TO BUYER ARE PROVIDED BUYER AS A CONVENIENCE AND SHALL NOT CREATE OR GIVE RISE TO ANY LIABILITY OF OR AGAINST SELLER. ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT BUYER'S SOLE RISK TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE ASSIGNMENT AND BILLS OF SALE, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as isLEASES, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership Interests. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS DEEDS OR OTHER CONVEYANCES TO BE DELIVERED BY SELLER AT CLOSING SHALL EXPRESSLY SET FORTH THE DISCLAIMS OF REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTSARTICLE l3.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Environmental Remediation Holding Corp)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 SECTION 6.1 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, AND BUYER HEREBY WAIVES ANY RIGHT TO MAKE ANY CLAIM BASED ON ANY OF THE FOREGOING, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE REAL PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY IS SOLELY FOR BUYER’S CONVENIENCE AND WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES. SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO (AND EXPRESSLY DISCLAIMS ALL) REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE CLOSING DOCUMENTS. SELLER SHALL NOT BE LIABLE FOR ANY MISTAKES, OMISSIONS, MISREPRESENTATION OR ANY FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL SELLER BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, APPRAISAL, ENVIRONMENTAL ASSESSMENT REPORTS OR OTHER INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY SELLER, ITS REPRESENTATIVES OR ANY OTHER PERSON OR ENTITY ACTING ON SELLER’S BEHALF EXCEPT, IN EACH CASE, AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY OF THE CLOSING DOCUMENTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated herebyReal Property. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, matters during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by or provided to Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer, except as expressly set forth in this Agreement or in any closing documents delivered by Seller at Closing. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditionsconditions (including any environmental conditions at, under or migrating from the Real Property), may not have been revealed by Buyer’s inspections and investigations. Nevertheless, Buyer, upon Closing, shall be deemed to have waived and released Seller from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including attorneys’ fees and court costs) of any and every kind or character, known or unknown, which Buyer might have asserted or alleged against Seller at any time by reason of or arising out of the Property. BUYER WAIVES AND RELEASES ALL COST RECOVERY AND CONTRIBUTION AND OTHER CLAIMS AGAINST SELLER RELATING TO THE PROPERTY ARISING UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT 42 U.S.C. 9601 ET SEQ. (“CERCLA”) AND OTHER LAWS AND COMMON LAW RELATING TO PROTECTION OF THE ENVIRONMENT OR HEALTH AND SAFETY OR TO POLLUTION). THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Real Property, “AS IS, WHERE IS,” with all faults. Except as expressly set forth in this Agreement or in any closing documents delivered by Seller at Closing, Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsReal Property. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS DISCLAIMERS, RELEASES AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE REAL PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.3.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS. The waivers and releases set forth in this Section include claims of which Buyer is presently unaware or which Buyer does not presently suspect to exist which, if known by Buyer, would materially affect Buyer’s waiver or release set forth above. In this connection, Buyer hereby agrees and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses and other claims and liabilities which are presently unknown, unanticipated and unsuspected, and Buyer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Buyer nevertheless hereby intends to release, discharge and acquit Seller from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses and other claims and liabilities. Buyer has initialed this Section to further indicate its awareness and acceptance of each and every provision hereof.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Donnelley Financial Solutions, Inc.)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS SECTION 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTSHEREOF, AS SUCH MAY BE LIMITED BY SECTION 7.3 7.2 HEREOF (PROVIDED PROVIDED, SUCH LIMITATIONS LIMITATION SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENTDEEDS, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE CLEAR CREEK CONCESSION AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS SECTION 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 7.2 HEREOF (PROVIDED PROVIDED, SUCH LIMITATIONS LIMITATION SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENTDEEDS, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE CLEAR CREEK CONCESSION AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS SECTION 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 7.2 HEREOF (PROVIDED PROVIDED, SUCH LIMITATIONS LIMITATION SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENTDEEDS, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE CLEAR CREEK CONCESSION AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections Section 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 7.2 (provided provided, such limitation shall not apply to the Assignment and Assumption of Lake Concession AgreementDeeds, the Assignment and Assumption of Mansfield Lease Agreement, Clear Creek Concession Agreement and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Property, “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (CNL Income Properties Inc)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, CONDUCTED OR WILL CONDUCT, SHALL CONDUCT ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSPROPERTY. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 SECTION 6.1 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)6.2 HEREOF, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER’S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING)HEREIN, SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (e) ANY CLAIM BY BUYER FOR DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, WITH RESPECT TO THE IMPROVEMENTS OR THE PERSONAL PROPERTY, (f) THE FINANCIAL CONDITION OR PROSPECTS OF THE PROPERTY, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS PROPERTY AND (g) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION THIS AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER IN THEIR ITS PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”, WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby(other than as expressly provided herein). Buyer acknowledges and agrees that it will have the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent Seller or of any officer, director, employee, agent or attorney of SellerSeller (except as expressly set forth herein). Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to BuyerBuyer (except as expressly set forth herein). Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer acknowledges and agrees that upon Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property and Cowboys Ownership Interests Property, “AS IS, WHERE IS,” with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership InterestsProperty, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “as is, where is” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsProperty. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 SUBSECTION 7.3.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Inland American Real Estate Trust, Inc.)
THE TRANSACTION CONTEMPLATED. BY THIS AGREEMENT HAS BEEN NEGOTIATED BETWEEN SELLER, EAGL PARENT SELLER AND BUYER, THIS AGREEMENT REFLECTS THE MUTUAL AGREEMENT OF SELLER, EAGL PARENT SELLER AND BUYER, AND BUYER HAS CONDUCTED, OR WILL CONDUCT, CONDUCTED ITS OWN INDEPENDENT EXAMINATION OF THE PROPERTY AND THE COWBOYS OWNERSHIP INTERESTSCABOT INTEREST. OTHER THAN THE MATTERS REPRESENTED IN SECTIONS 7.1 AND 7.2 HEREOF AND THOSE SET FORTH IN ANY OF THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER OR EAGL PARENT OR ANY OF THEIR SELLER'S AGENTS OR REPRESENTATIVES, AND BUYER HEREBY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. EXCEPT AS PROVIDED IN SECTIONS 7.1 AND 7.2 HEREOF AND IN THE PROPERTY SELLER’S DOCUMENTS AND THE EAGL SELLER’S DOCUMENTS, AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), SELLER AND EAGL PARENT SPECIFICALLY DISCLAIMDISCLAIMS, AND NEITHER SELLER NOR EAGL PARENT IT NOR ANY OTHER PERSON IS MAKING, ANY REPRESENTATION, WARRANTY OR ASSURANCE WHATSOEVER TO BUYER AND NO WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EITHER EXPRESS OR IMPLIED, ARE MADE BY SELLER OR EAGL PARENT OR RELIED UPON BY BUYER WITH RESPECT TO THE STATUS OF TITLE TO OR THE MAINTENANCE, REPAIR, CONDITION, DESIGN OR MARKETABILITY OF THE PROPERTY, THE COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTEREST, OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO (a) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (b) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (d) ANY RIGHTS OF BUYER UNDER APPROPRIATE STATUTES TO CLAIM DIMINUTION OF CONSIDERATION, (ed) ANY CLAIM BY BUYER 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, COWBOYS GOLF CLUB OR THE COWBOYS OWNERSHIP INTERESTS AND (ge) THE COMPLIANCE OR LACK THEREOF OF THE REAL PROPERTY OR THE IMPROVEMENTS, THE COWBOYS OWNERSHIP INTERESTS OR THE COWBOYS GOLF CLUB IMPROVEMENTS WITH GOVERNMENTAL REGULATIONSLAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL LAWS, IT BEING THE EXPRESS INTENTION OF SELLER. EAGL PARENT SELLER AND BUYER THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 7.1 AND 7.2 HEREOF AS SUCH MAY BE LIMITED BY SECTION 7.3 HEREOF (PROVIDED SUCH LIMITATIONS SHALL NOT APPLY TO THE ASSIGNMENT AND ASSUMPTION OF LAKE CONCESSION AGREEMENT, THE ASSIGNMENT AND ASSUMPTION OF MANSFIELD LEASE AGREEMENT AND THE XXXX OF SALE AND ASSIGNMENT AGREEMENTS TO BE DELIVERED AT CLOSING), THAT BUYER WILL ACCEPT THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS WILL BE CONVEYED AND TRANSFERRED TO BUYER THE CABOT INTEREST IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “"AS IS” " AND “"WHERE IS”", WITH ALL FAULTS. Buyer represents that it is a knowledgeable, experienced and sophisticated buyer of real estate, including golf courses, and that it is relying solely on its own expertise and that of Buyer’s 's consultants in purchasing the Cabot Interest and evaluating the Property and Cowboys Ownership Interests and that it is receiving reasonably equivalent value in consummating the transactions contemplated hereby. Buyer acknowledges and agrees that it will have Subject to Seller's obligations under Section 2.4, upon the opportunity to conduct such inspections, investigations and other independent examinations of the Property and Cowboys Ownership Interests and related matters, including but not limited to the physical and environmental conditions thereof, during the Due Diligence Period and, except as set forth in Sections 7.1 and 7.2 and in the Property Seller’s Documents and EAGL Seller’s Documents, as such may be limited by Section 7.3 (provided such limitation shall not apply to the Assignment and Assumption of Lake Concession Agreement, the Assignment and Assumption of Mansfield Lease Agreement, and the Xxxx of Sale and Assignment Agreements to be delivered at Closing), Buyer will rely upon same and not upon any statements of Seller, EAGL Parent or of any officer, director, employee, agent or attorney of Seller. Buyer acknowledges that all information obtained by Buyer will be obtained from a variety of sources and Seller and EAGL Parent will not be deemed to have represented or warranted the completeness, truth or accuracy of any of the Due Diligence Items or other such information heretofore or hereafter furnished to Buyer. Upon Closing, Buyer will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Buyer’s 's inspections and investigations. Buyer acknowledges and agrees that that, subject to Seller's obligations under Section 2.4, upon the Closing, Seller will sell and convey to Buyer, and Buyer will accept the Property Cabot Interest and Cowboys Ownership Interests “the Property, "AS IS, WHERE IS,” " with all faults. Buyer further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property or Cowboys Ownership Interests, by Seller, EAGL Parent, any agent of Seller or EAGL Parent or any third party. Neither Seller nor EAGL Parent is liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property or Cowboys Ownership Interests furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Buyer acknowledges that the Purchase Price reflects the “"as is, where is” " nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property and Cowboys Ownership InterestsCabot Interest or Property. BUYER, WITH BUYER’S COUNSEL, HAS FULLY REVIEWED THE DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT, AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. BUYER ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS AND OTHER AGREEMENTS SET FORTH HEREIN ARE AN INTEGRAL PART OF THIS AGREEMENT, AND THAT SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY AND COWBOYS OWNERSHIP INTERESTS TO BUYER FOR THE PURCHASE PRICE WITHOUT THE DISCLAIMER AND OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 8.2.2 WILL EXPRESSLY SURVIVE THE CLOSING, WILL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS.Buyer's Initials
Appears in 1 contract
Samples: Agreement of Sale and Purchase (Cabot Industrial Properties Lp)
