AS-IS. Notwithstanding anything to the contrary contained in this Agreement, Buyer acknowledges and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the condition of the Property, the size (including rentable or usable square footage) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____
Appears in 1 contract
Sources: Purchase and Sale Agreement (Steadfast Apartment REIT III, Inc.)
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW ("SELLER'S WARRANTIES"), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER'S WARRANTIES. EXCEPT FOR SELLER'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE 'S REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE BUYER’S PURCHASE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE PROPERTYCLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND THAT ITS SUITABILITY FOR BUYER’S INABILITY 'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE TERMINATION OF THE PROPERTY THIS AGREEMENT AND SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW. ----------------------- BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. Notwithstanding anything to the contrary contained in this AgreementAs of Closing, Buyer acknowledges will have examined and agrees thatinspected the Purchased Assets, except as otherwise expressly set forth in this Agreement or including the Closing Documents, (i) Buyer is purchasing the Property subject to all existing conditions, latent or patentReal Property, and applicable lawswill know and be satisfied with the physical condition, rulesquality, regulationsquantity and state of repair of the Purchased Assets in all respects (including, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA")); reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction; reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the ImprovementsReal Property; at its own cost and expense, made its own independent investigation respecting the present use Purchased Assets and all other aspects of this transaction, and shall have relied thereon and on the Property or advice of its consultants in entering into this Agreement; and Buyer, by proceeding with the suitability Closing of this transaction, shall be deemed to have determined that the same are satisfactory to Buyer’s contemplated ownership. BUYER HEREBY ACKNOWLEDGES THAT THE PURCHASED ASSETS ARE PROPERTY USED FOR BUSINESS PURPOSES AND NOT RESIDENTIAL REAL PROPERTY AND AGREES THAT THE REAL PROPERTY IS EXEMPT FROM, operation or use of the PropertyAND THAT SELLER IS NOT REQUIRED TO PROVIDE, ANY RESIDENTIAL PROPERTY DISCLOSURES WITH RESPECT TO THE REAL PROPERTY. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT THE PURCHASED ASSETS, INCLUDING WITHOUT LIMITATION THE REAL PROPERTY, ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS. NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PURCHASED ASSETS, INCLUDING WITHOUT LIMITATION THE REAL PROPERTY, AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PURCHASED ASSETS. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) BUYER IS TAKING THE REAL PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT THERE IS NO WARRANTY BY SELLER THAT THE REAL PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE REAL PROPERTY, AND (C) BUYER TAKES THE REAL PROPERTY UNDER THIS AGREEMENT WITH THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES. BUYER IS, OR WILL BE AS OF THE CLOSING, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE THE CLOSING OR ANY TERMINATION OF THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS THE REAL PROPERTY MAY OR MAY NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTYCONTAIN ASBESTOS AND/OR LEAD PAINT AND, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY REMEDIATE ANY ASBESTOS OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND LEAD PAINT CONDITION IN ACCORDANCE WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____APPLICABLE LAW.
Appears in 1 contract
AS-IS. Notwithstanding As of the expiration of the Due Diligence Period, Buyer will have:
(a) examined and inspected the Property and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein. In addition, and notwithstanding anything to the contrary contained in this Agreement, Buyer acknowledges and agrees that, except as otherwise expressly set forth in this Agreement or in the Closing DocumentsDeed at the time the Deed is recorded (including, (i) Buyer without limitation, any express or implied covenants set forth therein), Seller is purchasing transferring the Property to Buyer subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the condition of the PropertyPermitted Exceptions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, the size AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED AND ANY OTHER DOCUMENTS DELIVERED AT THE CLOSE OF ESCROW AND ANY COVENANTS OR OBLIGATIONS EXPRESSLY UNDERTAKEN BY SELLER HEREUNDER (including rentable or usable square footage“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the PropertyBY SELLER. WITHOUT LIMITING AS A MATERIAL PART OF THE FOREGOINGCONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND IN EACH CASE, OTHER THAN THE SELLER’S WARRANTIES, IF ANY:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/ RJH BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees thatINITIALS Notwithstanding anything contained herein to the contrary, except for Seller shall not be released or discharged from any liability to the representations and 11476794.5 40 warranties and covenants extent the same arises out of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) a breach of a representation or warranty made by Seller under this Agreement that by the condition express terms of title to this Agreement survive the Real Property; Closing, (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (kii) Seller’s ownership fraud, (iii) Seller’s breach of any provision of this Agreement that by the Property or any portion thereof; express terms of this Agreement survives Closing, or (liv) to the economics of, extent first arising prior to (or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership period prior to) the Closing Date, any claim by a third party for personal injury at the Property that was incurred prior to the Closing Date. The provisions of this Section 11.2 shall survive the Closing or use the earlier termination of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
AS-IS. Notwithstanding anything If this Agreement is not terminated pursuant to the contrary contained in this Agreement, Buyer acknowledges and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf terms of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the condition of the Property, the size (including rentable or usable square footage) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees thatSection 4.3.2 hereof, except for the representations Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have:
(a) examined and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) inspected the Property is and Defeasance Security and Company shall be deemed to know and be purchased by and conveyed to Buyer in its present satisfied with the physical condition, “AS IS”quality, “WHERE IS” AND WITH ALL FAULTS, quantity and that no patent or latent defect or deficiency in the condition state of repair of the Property whether or not known or discoveredand Defeasance Security in all respects (including, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Propertywithout limitation, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities ActAct of 1990 Pub.L. 101-336, 104 Stat. 327 (1990); , and any comparable local or state laws (fcollectively, the “ADA”);
(b) reviewed the ability Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to review in connection with this transaction, including, but not by way of Buyer to obtain limitation, any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title all documentation relating to the Real Property; (j) Service Contracts or Interests, any other agreements affecting and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the intentions business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests and all other aspects of any party with respect to this transaction, and shall have relied thereon and on the negotiation and/or execution advice of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than its consultants in entering into this Agreement, and Company shall be deemed to have determined that the same are satisfactory to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) nor remedy in favor of BuyerBY SELLER. Buyer’s Initials: __DD____AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ BH COMPANY’S INITIALS
Appears in 1 contract
Sources: Agreement for Sale of Membership Interests (Gramercy Capital Corp)
AS-IS. Notwithstanding anything to As of the contrary contained in this AgreementClosing Date, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any of the Improvementscomparable local or state laws (collectively, the present use “ADA”)) and by consummating this transaction at the Close of Escrow, shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the suitability business conducted thereon, and Buyer, by consummating this transaction at the Close of Escrow, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer’s contemplated ownership;
(c) reviewed all applicable laws, operation ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or use enjoyment of the Real Property, and Buyer, by consummating this transaction at the Close of Escrow, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by consummating this transaction at the Close of Escrow, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA (AS DEFINED ABOVE)). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/ D. S. BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Strategic Opportunity REIT, Inc.)
AS-IS. Notwithstanding anything If this Agreement is not terminated pursuant to the contrary contained in this Agreement, Buyer acknowledges and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf terms of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the condition of the Property, the size (including rentable or usable square footage) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees thatSection 4.3.2 hereof, except for the representations Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have:
(a) examined and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) inspected the Property is and Defeasance Security and Company shall be deemed to know and be purchased by and conveyed to Buyer in its present satisfied with the physical condition, “AS IS”quality, “WHERE IS” AND WITH ALL FAULTS, quantity and that no patent or latent defect or deficiency in the condition state of repair of the Property whether or not known or discoveredand Defeasance Security in all respects (including, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Propertywithout limitation, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities ActAct of 1990 Pub.L. 101-336, 104 Stat. 327 (1990); , and any comparable local or state laws (fcollectively, the “ADA”);
(b) reviewed the ability Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to review in connection with this transaction, including, but not by way of Buyer to obtain limitation, any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title all documentation relating to the Real Property; (j) Service Contracts or Interests, any other agreements affecting and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the intentions business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests and all other aspects of any party with respect to this transaction, and shall have relied thereon and on the negotiation and/or execution advice of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than its consultants in entering into this Agreement, and Company shall be deemed to have determined that the same are satisfactory to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) nor remedy in favor of BuyerBY SELLER. Buyer’s Initials: __DD____AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Sources: Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.)
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS EXECUTED IN CONNECTION WITH THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/MW BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Borrower;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW ("SELLER'S WARRANTIES"), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER'S WARRANTIES. EXCEPT FOR SELLER'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE 'S REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE BUYER’S PURCHASE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE PROPERTYCLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND THAT ITS SUITABILITY FOR BUYER’S INABILITY 'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE TERMINATION OF THE PROPERTY THIS AGREEMENT AND SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW. WLO -------------------- BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
AS-IS. Notwithstanding anything As of the expiration of the Due Diligence Period, Buyer will have:
(a) examined and inspected the Property and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, any licenses, leases, contracts, warranties and guarantees relating to the contrary Real Property or the business conducted thereon, and any documentation relating to the Interests, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Interests and/or the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, Buyer acknowledges and agrees thatBuyer, except as otherwise expressly by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; provided, however, the foregoing shall not be deemed to relieve Seller of its continuing covenants and obligations in this Agreement between the Effective Date and the Close of Escrow with respect to the Property (including, without limitation, with respect to title), nor shall the foregoing in any way impair Buyer’s ability to rely on Seller’s representations and warranties set forth in this Agreement or with respect to the Closing Documentspurchase of the Interests from Seller. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S COVENANTS AND OBLIGATIONS EXPRESSLY STATED IN THIS AGREEMENT AND SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY EXECUTED DOCUMENT DELIVERED BY SELLER TO BUYER AT THE CLOSE OF ESCROW (“SELLER’S COVENANTS AND WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER AGREES TO ACCEPT THE INTERESTS AND THE PROPERTY OWNERS’ INTEREST IN THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES. EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE PROPERTY OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE INTERESTS, THE PROPERTY OWNERS OR THE ENTITY DOCUMENTS. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER IS TAKING THE INTERESTS AND THE PROPERTY OWNERS’ INTEREST IN THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (iB) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the condition of the Property, the size (including rentable or usable square footage) of the Real Property and/or any of the Improvements, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOINGEXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER EXPRESSLY IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER TAKES THE INTERESTS AND THE PROPERTY OWNERS’ INTERESTS IN THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES). WITH RESPECT TO THE FOLLOWING, AND EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT NEITHER SELLER NOR THE PROPERTY OWNERS SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT NEITHER SELLER NOR THE PROPERTY OWNERS HAVE MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND RELATING TO:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS NOT AGREED TO PROVIDE EXAMINED THE PROPERTY OR ANY LOAN ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS OR THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE INTERESTS, THE PROPERTY OWNERS, THE ENTITY DOCUMENTS AND THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THE PROPERTY, THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. Notwithstanding anything The Company acknowledges that it has, prior to the contrary contained date hereof, inspected the Properties, the physical and environmental condition and the uses thereof, and the fixtures, equipment and personal property included in this sale and acquisition to its satisfaction, and the Company has independently investigated, analyzed and appraised the value and profitability thereof, the creditworthiness of tenants, and the presence of hazardous materials, if any, in or on the Properties, that they have received or had made available to them by Seller, on or prior to the date hereof, copies of and/or has reviewed the Review Materials and other agreements and documents referred to or contemplated herein, that they are thoroughly acquainted with all of the foregoing and that the Company, in entering into this Agreement, Buyer acknowledges will rely exclusively upon their own independent investigations, analyses, studies and agrees that, except as otherwise expressly set forth in this Agreement or appraisals and not upon any information provided to the Closing Documents, (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements Company by or on behalf of Seller of any kind whatsoeverwith respect thereto. AT THE CLOSING, whether oral or writtenTHE COMPANY AGREES TO ACCEPT THE PROPERTIES SOLD TO THE COMPANY AND/OR THE SPE ENTITIES, express or impliedAS APPLICABLE, statutory or otherwiseAT SUCH CLOSING IN "AS IS, as to any matters concerning the PropertyWHERE IS" CONDITION, the condition of the PropertyEXCEPT FOR SELLER'S REPRESENTATIONS, the size (including rentable or usable square footage) of the Real Property and/or any of the ImprovementsWARRANTIES OR COVENANTS EXPRESSLY CONTAINED IN THIS AGREEMENT, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE WITH ALL FAULTS AS OF THE PROPERTYDATE HEREOF AND SPECIFICALLY AND WITHOUT ANY WARRANTIES, THAT BUYER HAS ASSUMED REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED AS TO (I) THE ENTIRE CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, OR MERCHANTABILITY OF SUCH PROPERTIES, (II) THE STRUCTURAL INTEGRITY OF SUCH PROPERTIES, (III) THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, DATA, MATERIALS OR CONCLUSIONS CONTAINED IN ANY INFORMATION PROVIDED TO THE COMPANY FROM ANY SOURCE WHATSOEVER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (IV) ENVIRONMENTAL MATTERS PERTAINING TO SUCH PROPERTIES EXCEPT AS SET FORTH HEREIN, OR (V) ANY OTHER WARRANTY OF ANY KIND, NATURE OR TYPE WHATSOEVER FROM SELLER, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, REASONABLE WEAR AND TEAR AND DAMAGE BY FIRE OR OTHER CASUALTY (SUBJECT TO THE PROVISIONS OF SECTION 8.01) BETWEEN THE DATE HEREOF AND THE CLOSING DATE EXCEPTED, AND THE COMPANY SHALL ASSUME (SUBJECT TO THE PROVISIONS HEREOF AND APPLICABLE LAW) THE RISK THAT BUYER MAY OR ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF HAVE BEEN REVEALED BY THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____COMPANY'S INVESTIGATIONS.
Appears in 1 contract
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT EXCEPT FOR SELLER’S WARRANTIES, BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/ PMM BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the "ADA") and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW ("SELLER'S WARRANTIES"), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER'S WARRANTIES. EXCEPT FOR SELLER'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER'S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS TAKING THE PROPERTY "AS IS" WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER'S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE 'S REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE BUYER’S PURCHASE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE PROPERTYCLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND THAT ITS SUITABILITY FOR BUYER’S INABILITY 'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE TERMINATION OF THE PROPERTY THIS AGREEMENT AND SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSE OF ESCROW. BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including'S INITIALS: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD_____________
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. Notwithstanding anything BUYER EXPRESSLY ACKNOWLEDGES THAT THE PROPERTY IS BEING SOLD AND ACCEPTED "AS IS" AND "WITH ALL FAULTS" AND IS BEING ACCEPTED WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHATSOEVER EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE DEED. BUYER ACKNOWLEDGES THAT IT HAS MADE SUCH INVESTIGATION OF THE CONDITION OF THE PROPERTY AND CONDUCTED DUE DILIGENCE AS BUYER DEEMED NECESSARY OR ADVISABLE AND IS RELYING SOLELY UPON ITS OWN INVESTIGATION OF SUCH CONDITION AND DUE DILIGENCE AND NOT UPON ANY STATEMENT OR OPINION BY SELLER OR ANY SELLER’S INDEMNIFIED PARTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR AS PROVIDED IN THE DEED, BUYER EXPRESSLY AGREES THAT NONE OF SELLER OR ANY SELLER’S INDEMNIFIED PARTY HAS MADE OR MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROPERTY. Without limiting the foregoing, by accepting the Deed and any other documents provided for herein and paying the Purchase Price, Buyer is thereby acknowledging that (a) it is familiar with the Property and has had full opportunity, to the contrary contained in this Agreementextent it desired to do so, Buyer acknowledges to fully inspect and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, review (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the environmental condition of the Property, (ii) the size title to the Property, (including rentable or usable square footageiii) of the Real Property and/or any of the Improvements, the present use compliance of the Property or the suitability of Buyer’s contemplated ownershipwith all applicable laws, operation or use of and (iv) such other engineering, financial, and operational matters related to the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTYas Buyer has deemed appropriate; (b) Buyer is accepting the Property in "AS-IS, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTYWHERE-IS" condition and state of repair, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges with all faults and agrees that, without representation or warranty (except for the representations and 11476794.5 40 warranties and covenants of Seller as expressly provided in this Agreement Agreement); (c) Buyer is accepting and in agrees to be liable for any and all environmental liabilities arising from, related to or associated with the Property whether such obligations and liabilities arose, occurred or relate to the period prior to, on or after the Closing Documents, Date; and (1d) Buyer is aware that the development of the Property will be impacted by the following factors: (i) the Property is subject to be purchased by easements for right of way and conveyed temporary construction granted to Buyer the Portland Bureau of Transportation (“PBOT”) in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in connection with the condition rebuilding of North ▇▇▇▇▇▇ Road; (ii) rail access to the Property whether or not known or discovered, shall affect will require PBOT approval of a railroad crossing across ▇. ▇▇▇▇▇▇ Rd. from Buyer’s mainline to the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and Property; (2iii) Buyer shall acquire the Property solely upon is subject to an Equitable Servitude and Easement granted to the basis Oregon Department of Buyer’s independent inspection and investigation of the Property, including: Environmental Quality; (aiv) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within is in a special designated flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (bv) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereonis tree covered and tree preservation is a land division criteria; (cvi) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership areas of the Property have slopes in excess of twenty percent (20%) which may necessitate landslide mitigation as a condition of partition; and (vii) any other factors that an inspection or any portion thereof; or environmental assessment would reveal and all matters of record (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use “Condition of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____”).
Appears in 1 contract
Sources: Agreement of Sale
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”) and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. BUYER ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/ GRS BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Republic Property Trust)
AS-IS. Notwithstanding anything 5.1 Purchaser is purchasing the Property in its now existing condition (subject to normal wear and tear and loss or damage by fire, other casualty and condemnation [to the contrary contained extent provided herein], between the date hereof and the Closing) “AS IS, WHERE IS, AND WITH ALL FAULTS” with respect to all facts, circumstances, conditions and defects, and Seller has no obligation to determine or correct any such facts, circumstances, conditions or defects or to compensate Purchaser for same. Seller has specifically bargained for the assumption by Purchaser of all responsibility to investigate the Property, Laws and Regulations, Rights, Facts, compliance with Environmental Laws (as defined in Section 5.3 hereof), the environmental condition of the Property, including the presence of Hazardous Materials (as defined in Section 5.3 hereof), and violations of any of the foregoing, and of all risk of adverse conditions and has structured the Purchase Price and other terms of this AgreementAgreement in consideration thereof. Purchaser hereby covenants and represents that upon the expiration of the Diligence Period, Buyer acknowledges Purchaser shall have either (i) terminated this Agreement by notice to Seller pursuant to Section 5.8 hereof, or (ii) undertaken and agrees thatcompleted all such investigations of the Property, except Laws and Regulations, Rights, Facts, compliance with Environmental Laws, the environmental condition of the Property, including the presence of Hazardous Materials, and violations of any of the foregoing as Purchaser shall have deemed necessary or appropriate under the circumstances as to the status thereof and based upon same, Purchaser is and will be relying strictly and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers and Purchaser is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Property. Except as is otherwise expressly set forth in this Agreement or to the contrary, Seller agrees to cause the Building to be maintained between the date hereof and the Closing Documentsin at least as good a condition as it was in as of the date hereof, normal wear and tear and loss or damage by fire, other casualty and condemnation (to the extent provided herein) excepted.
5.2 Seller hereby disclaims all warranties of any kind or nature whatsoever (including warranties of habitability and fitness for particular purposes), whether expressed or implied, including, without limitation, warranties with respect to the Property. Purchaser acknowledges that it is not relying upon any representation of any kind or nature made by Seller, or of any broker, or any of their respective direct or indirect members, partners, shareholders, officers, directors, employees or agents (collectively, the “Seller Related Parties”) with respect to the Property, and that, in fact, no such representations were made except as may be otherwise expressly set forth in this Agreement.
5.3 Seller makes no warranty with respect to: (i) Buyer is purchasing the Property subject to all existing conditions, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Property, the environmental condition of the Property, the size (including rentable or usable square footage) of the Real Property and/or any of the Improvementsincluding, without limitation, the present use of the Property or the suitability of Buyer’s contemplated ownership, operation or use of the Property. WITHOUT LIMITING THE FOREGOING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT AGREED TO PROVIDE ANY LOAN TO BUYER TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, THAT BUYER HAS ASSUMED THE ENTIRE RISK THAT BUYER MAY OR MAY NOT BE ABLE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY, AND THAT BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials in the Building, or on, in, underat, above or about beneath the Real Property (or any adjoining parcel or neighboring property; (h) the quality of any labor and materials used land in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____proximity
Appears in 1 contract
Sources: Purchase and Sale Agreement (Axsys Technologies Inc)
AS-IS. Notwithstanding anything to As of the contrary contained in this Agreementexpiration of the Due Diligence Period, Buyer acknowledges will have:
(a) examined and agrees that, except as otherwise expressly set forth in this Agreement or the Closing Documents, (i) Buyer is purchasing inspected the Property subject to and will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property in all existing conditionsrespects (including, latent or patent, and applicable laws, rules, regulations, codes, ordinances and orders, and (ii) neither Seller nor any Seller Released Party has made any representations, warranties or agreements by or on behalf of Seller of any kind whatsoever, whether oral or written, express or implied, statutory or otherwise, as to any matters concerning the Propertywithout limitation, the condition of the Property, the size (including rentable or usable square footage) compliance of the Real Property and/or with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the ImprovementsDue Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Property Information and all instruments, records and documents which Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the present use of the Real Property or the suitability of business conducted thereon, and Buyer’s contemplated ownership, operation or use by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Buyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(d) at its own cost and expense, made its own independent investigation respecting the Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT LIMITING REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE FOREGOINGMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, BUYER EXPRESSLY AGREES TO ACCEPT THE PROPERTY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). BUYER ACKNOWLEDGES THAT ▇▇▇▇▇ HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND THAT BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY. ADDITIONALLY, BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS TAKING THE PROPERTY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, BUYER IS SOLELY RELYING UPON ITS EXAMINATION OF THE PROPERTY, AND (C) BUYER TAKES THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, ▇▇▇▇▇ FURTHER ACKNOWLEDGES AND AGREES THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT AGREED TO PROVIDE MADE NO REPRESENTATIONS OR WARRANTIES OF ANY LOAN KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE PROPERTY INFORMATION) DELIVERED TO BUYER PURSUANT TO FINANCE BUYER’S PURCHASE REVIEW OF THE CONDITION OF THE PROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO BUYER BY SELLER OR REVIEWED BY BUYER WITH RESPECT TO THE PROPERTY. ▇▇▇▇▇ ALSO ACKNOWLEDGES THAT BUYER HAS ASSUMED THE ENTIRE RISK REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT BUYER MAY OR MAY NOT BE ABLE REQUIRED TO OBTAIN REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. BUYER IS A LOAN TO FINANCE SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE CLOSE OF ESCROW, FAMILIAR WITH THE REAL PROPERTY AND ITS SUITABILITY FOR BUYER’S PURCHASE INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE PROPERTY, AND THAT DOCUMENTS EXECUTED AT CLOSE OF ESCROW. /s/ BAK BUYER’S INABILITY OR FAILURE TO OBTAIN A LOAN TO FINANCE BUYER’S PURCHASE OF THE PROPERTY SHALL NOT EXCUSE OR RELIEVE BUYER FROM PERFORMING BUYER’S OBLIGATIONS UNDER THIS AGREEMENT. Buyer hereby acknowledges and agrees that, except for the representations and 11476794.5 40 warranties and covenants of Seller expressly provided in this Agreement and in the Closing Documents, (1) the Property is to be purchased by and conveyed to Buyer in its present condition, “AS IS”, “WHERE IS” AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Property whether or not known or discovered, shall affect the rights of either Seller or Buyer hereunder nor shall the Purchase Price be reduced as a consequence thereof and (2) Buyer shall acquire the Property solely upon the basis of Buyer’s independent inspection and investigation of the Property, including: (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Property or any aspect or portion thereof, including access, sewage, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone; (b) the dimensions or lot size of the Real Property or the nature or square footage of any Improvements thereon; (c) the development or income potential, or rights of or relating to, the Real Property or its use, habitability, merchantability, or fitness, or the suitability, value or adequacy of such Real Property for any particular purpose; (d) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property; (e) the compliance of the Real Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity (including the Americans With Disabilities Act); (f) the ability of Buyer to obtain any necessary governmental approvals, licenses or permits for Buyer’s intended use, occupancy or development of the Real Property; (g) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property; (h) the quality of any labor and materials used in the Improvements; (i) the condition of title to the Real Property; (j) Service Contracts or any other agreements affecting the Real Property or the intentions of any party with respect to the negotiation and/or execution of any lease or contract with respect to the Real Property; (k) Seller’s ownership of the Property or any portion thereof; or (l) the economics of, or the income and expenses, revenue or expense projections or other financial matters, relating to the ownership or use of the Real Property. Without limiting the generality of the foregoing, Buyer expressly acknowledges and agrees that Buyer is not relying on any representation or warranty of Seller or any Seller Released Parties, whether implied, presumed or expressly provided at law or otherwise, arising by virtue of any statute, common law or other legally binding right (other than this Agreement) nor remedy in favor of Buyer. Buyer’s Initials: __DD____INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Growth & Income REIT, Inc.)