As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant and agree to and with the Seller that, except as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and (b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING.
Appears in 6 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Carey Watermark Investors Inc), Purchase and Sale Agreement (Carey Watermark Investors Inc)
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant and agree to and with the Seller that, except Except as otherwise expressly provided in this Agreement set forth herein or in any closing documents document executed by Seller and delivered to be delivered by the Purchaser at Closing, Seller is not making and has not at any time made any representations or warranties of any kind or character, express or implied, with respect to the Buyer at Property, including, without limitation, any representations or warranties as to fitness for a particular purpose. Purchaser acknowledges and agrees that upon Closing: (i) , Seller shall sell and convey to Purchaser and Purchaser shall accept the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition Property “AS IS, WHERE IS, AND WITH ALL FAULTS”, except as expressly set forth herein or in any document executed by Seller and delivered to Purchaser at Closing. Purchaser has not relied and will not rely on, and Seller is not and shall not be liable for or bound by, any express or implied warranties, guaranties, statements, representations or information pertaining to the Property or relating thereto made available or furnished by Seller, the managers of the Property or any real estate broker or agent representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing, unless specifically set forth in this Agreement or in any document executed by Seller and delivered to Purchaser at Closing. Purchaser acknowledges and agrees that the Purchase Price reflects and takes into account that the Property is being sold “AS IS, WHERE IS, WITH ALL FAULTS.” whether known Purchaser represents to Seller that Purchaser has conducted such investigations of the Property, including, without limitation, the physical and environmental conditions thereof, as Purchaser deems necessary or unknown desirable to satisfy itself as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to all factsany hazardous or toxic substances on or discharged from the Property, circumstancesand will rely solely upon the same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, conditions other than such representations and defectswarranties of Seller as are expressly set forth herein or in any document executed by Seller and delivered to Purchaser at Closing. Upon Closing, both patent Purchaser shall assume the risk that adverse matters, including but not limited to construction defects and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, adverse physical and legal examinations environmental conditions, may not have been revealed by Purchaser’s investigations, and inquiries as the Buyer deems necessary or appropriate except with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption matters which by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other express terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections any document executed by Seller and investigations delivered to Purchaser at Closing survive Closing and except for any claims arising out of the Asset as the Buyer deems necessary or appropriate with respect fraudulent actions of Seller, Purchaser, upon Closing, shall be deemed to the Asset have waived, relinquished and the suitability of the Asset for Buyerreleased Seller (and Seller’s intended use, and based upon same, the Buyer 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, the Buyer has approved directors, shareholders, direct and indirect members, employees and agents) from and against any and all claims, demands, causes of action (including causes of action in tort), losses, damages, liabilities, costs and expenses (including attorneys’ fees) of any and every kind or will approve the Asset in all respectscharacter, known or unknown, which Purchaser might have asserted or alleged against Seller (and the Buyer is Seller’s officers, directors, shareholders, direct and will be fully satisfied that the Purchase Price is fair indirect members, employees and adequate consideration for the Asset; and (viagents) the Seller is not making and has not made at any warranty time by reason of or representation with respect to arising out of any materials latent or other data provided by the Seller to the Buyer (whether prepared by patent construction defects or for the Seller or others) or the educationphysical conditions, skills, competence or diligence of the preparers thereof or the physical condition violations or any applicable laws and any and all other aspect of all facts, omissions, events, circumstances or any part of matters regarding the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGProperty.
Appears in 5 contracts
Sources: Interest Purchase and Sale Agreement (Independence Realty Trust, Inc), Interest Purchase and Sale Agreement (Independence Realty Trust, Inc), Interest Purchase and Sale Agreement (Independence Realty Trust, Inc)
As Is, Where Is. The Purchaser acknowledges and agrees that:
(a) on the Closing Date, title to the Purchased Assets shall be subject to the Permitted Encumbrances;
(b) in entering into this Agreement, except as set forth in this Agreement, the Purchaser has relied and will continue to rely entirely and solely upon its own inspections and investigations with respect to the Purchased Assets, including without limitation, the physical and environmental condition of the Lands and Buildings, and the review of the documentation made available to the Purchaser pursuant to this Agreement, and the Purchaser acknowledges that it is not relying on any information furnished by the Vendor or any other person or entities on behalf of or at the direction of the Vendor in connection therewith; and
(c) the Vendor is selling the Purchased Assets on an “as is, where is” basis as they shall exist on the Closing Date and no adjustments shall be made for any changes in the condition of any Purchased Assets (other than the specific adjustments in Section 13 below). The Buyer Purchaser further acknowledges that it has entered into this Agreement on the basis that the Vendor does not warrant, covenant or guarantee title to the Purchased Assets and that the Purchaser has conducted such inspections of the condition of and title to the Purchased Assets, and the nature and quantum of the claims against the Purchased Assets, in each case as it deemed appropriate and has satisfied itself with regard to these matters; no representation, warranty or condition is expressed or can be implied as to title, description, fitness for purpose, merchantability, condition, assignability, collectability, quantity, outstanding amount, value or quality of, or in respect of any Purchased Assets or any other matter or thing whatsoever concerning the Purchased Assets or the right of the Vendor to sell same, save and except as expressly represented or warranted herein; and without limiting the generality of the foregoing, any and all conditions, warranties or representations expressed or implied pursuant to the Sale of Goods Act (Ontario) do not apply hereto and are hereby acknowledge, represent, warrant and agree to and waived by the Purchaser. The risk of loss of the Purchased Assets shall remain with the Seller thatVendor until the Closing Date and any property, except liability and other insurance shall remain the responsibility of the Vendor until the transfer/vesting of the Purchased Assets on the Closing Date. The Vendor shall have no obligations or responsibility to the Purchaser after the Closing Date with respect to any matter relating to the Purchased Assets or the condition thereof save as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms . The provisions of this Agreement in consideration thereof; (v) Section 6 shall not merge on, but shall survive, closing on the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGClosing Date.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant and agree to and with the Seller that, except Except as otherwise expressly provided in this Agreement Agreement, the Township shall accept Lot 41.02 at the Closing in the “as is”, “where is” condition of Lot 41.02 with all faults as of the Closing Date Two. The Township agrees that: WOOEP shall not be liable for any construction, latent or patent defects in Lot 41.02, and shall not be bound in any manner whatsoever by any guarantees, promises, projections, operating expenses, set-up or other information pertaining to Lot 41.02 made, furnished or claimed to have been made or furnished by WOOEP or any other person or entity, including, without limitation, any broker, or any partner, member, manager, shareholder, employee, agent, attorney or other person representing or purporting to represent WOOEP or any broker, whether verbally or in writing. The Township acknowledges that neither WOOEP nor any closing documents to be delivered by of the Seller employees, agents or attorneys of WOOEP has made any verbal or written representations or warranties whatsoever to the Buyer at Closing: (i) the Buyer is Township, whether express, implied, statutory, or by operation of law, except as expressly purchasing the Asset (set forth in this Agreement, and any part thereof) in its existing condition “AS ISparticular, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions that no such representations and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate warranties have been made with respect to the Asset physical or environmental condition or operation of Lot 41.02, the layout or footage of Lot 41.02, the actual or projected revenue and expenses of Lot 41.02 or any of the transaction leases at Lot 41.02 (including without limitation, the lease with the TSA), zoning, environmental, and other laws, regulations and rules applicable to Lot 41.02, or the compliance of Lot 41.02 therewith, the quantity, quality or condition of the articles of personal property and fixtures included in the transactions contemplated by hereby, the use or occupancy of Lot 41.02 or any part thereof or any other matter or thing affecting or relating to Lot 41.02 or the transactions contemplated hereby, except as specifically set forth in this Agreement; (iv) the Seller . The Township has specifically bargained for the assumption by the Buyer of all responsibility to inspect not relied and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement is not relying upon any representations or warranties, or upon any statements made in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate any informational materials with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data Lot 41.02 provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the educationWOOEP, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all person or entity, including any broker or any part of the Asset as an inducement shareholder, member, manager, employee, agent, attorney or other person representing or purporting to the Buyer to enter into this Agreement and thereafter to purchase the Asset represent WOOEP or for any other purposebroker. Without limiting the generality of any of the foregoingIN ADDITION TO, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS WITHOUT LIMITATION OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THATFOREGOING, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AGREEMENT: WOOEP MAKES NO WARRANTY, EXPRESSLY, IMPLIED, STATUTORY, OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER OPERATION OF LAW, AS TO THE BUYER AT CLOSING.QUANTITY, QUALITY, MERCHANTABILITY, TITLE, MARKETABILITY, FITNESS, OR SUITABILITY FOR A PARTICULAR PURPOSE OF LOT 41.02 OR ANY COMPONENT THEREOF, AND LOT
Appears in 2 contracts
As Is, Where Is. Tenant is familiar with each and every aspect of the Facilities, including the condition of the Land and all improvements thereon, and hereby accepts same on an AS IS/WHERE IS BASIS WITH ALL FAULTS and without reliance upon any representations or warranties of Landlord of any kind or nature whatsoever except as set out in Section 2.2 above, whether express or implied, and subject to all matters of every kind and description including, without limitation, (a) The Buyer does hereby acknowledgethe existing state of title, representincluding all covenants, warrant conditions, restrictions, ground leases, easements, Legal Requirements, mortgages, fixture filings, security agreements, financing statements and agree to and with the Seller that, except as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (other financing instruments and any part thereofand all other matters, including matters known to Tenant, all matters of record and other matters, (b) in its existing condition “AS ISmatters which would be disclosed by an inspection of the Property or by an accurate survey of each parcel of the Land and (c) all other matters which should reasonably have been known to Tenant (but excluding any matters created or caused by any acts of Landlord). Except for matters arising by, WHERE ISthrough or under Landlord, AND WITH ALL FAULTS” whether known Tenant waives any and all claims, demands and cause or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair causes of action heretofore or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate hereafter arising against Landlord with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations condition of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) Property or the educationability of Tenant to conduct any business from the Facilities. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, skillsLANDLORD MAKES NO WARRANTY OR REPRESENTATION, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYPROPERTY AT THE FACILITIES OR ANY PART THEREOF, ZONINGEITHER AS TO ITS DESIGN, LAND VALUECONDITION, AVAILABILITY OF ACCESS HABITABILITY, MERCHANTABILITY OR UTILITIESFITNESS FOR ANY PARTICULAR USE OR PURPOSE (INCLUDING, INGRESS WITHOUT LIMITATION, THE PERMITTED USES) OR EGRESS, GOVERNMENTAL APPROVALS, AS TO THE QUALITY THEREOF OR THE SOIL CONDITIONS PRESENCE OR ABSENCE OF DEFECTS IN THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT. TENANT ACKNOWLEDGES AND AGREES THAT, AS OF THE LAND. COMMENCEMENT DATE, THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS PROPERTY AT THE FACILITIES SHALL BE CONCLUSIVELY DEEMED TO HAVE BEEN INSPECTED BY TENANT AND SHALL BE CONCLUSIVELY DEEMED TO BE DELIVERED BY THE SELLER SATISFACTORY TO THE BUYER AT CLOSINGIT IN ALL RESPECTS, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN TENANT SPECIFICALLY ACKNOWLEDGES ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER ISSUES WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY PROPERTY THAT ARE SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER DISCLOSURE SCHEDULES ATTACHED TO THE BUYER AT CLOSINGPURCHASE AGREEMENT.
Appears in 2 contracts
Sources: Master Lease (Newcastle Investment Corp), Master Lease (National Health Investors Inc)
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendors set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendors nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendors’ right, title or interest in or to the Purchased Assets, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of any parts and/or components, latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or normal operation thereof, or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser. Without limiting the generality of the foregoing, the Purchaser acknowledges that in the case of one piece of ▇▇▇▇▇▇ Mine Equipment, being the 2011 Komatsu 830E haul truck with serial # ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ (the “Truck A30533”), the engine has been removed and is currently in a damaged and non- operational condition;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendors have made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendors, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendors expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent and whether or not discoverable or latent; (ii) the Seller has no obligation to inspect for, repair product liability claims, or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended usesimilar claims, and based upon same, the Buyer is all other claims that may be later created or conceived in strict liability or as strict liability type claims and will be relying strictly rights. For greater certainty and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent merge on Closing and is deemed incorporated by reference in all closing documents and deliveries. The Purchaser shall have no recourse or in any way warrant the accuracy claim of any marketing information or pamphlets listing or describing kind against the Asset or proceeds of the information, if any, provided transactions contemplated by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGthis Agreement following Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendors set forth in Section 4.3, representit is entering into this Agreement, warrant assuming the Assumed Liabilities, agreeing to be responsible for the Environmental Obligations and agree acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time, and will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement, and the sale of the Purchased Assets is made without legal warranty and at the risk and peril of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets, the Businesses, the Assumed Liabilities and the Environmental Obligations as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.3, neither the Vendors nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendors’ right, title or interest in or to the Purchased Assets, the Businesses or the Assumed Liabilities or the Environmental Obligations, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or the Assumed Liabilities or the Environmental Obligations or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Bloom Lake Mine or any of the other Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.3, the Vendors have made no representation or warranty as to any regulatory approvals, Permits and Licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate or carry on the Business or any portion thereof, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets, the Businesses and the Assumed Liabilities or the Environmental Obligations has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets, the Businesses or the Assumed Liabilities or the Environmental Obligations in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendors, any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations member of the Asset as the Buyer deems necessary SISP Team or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoingSISP Team’s Representatives pursuant to any warranty, the Buyer specifically acknowledges that the Seller does not represent express or in any way warrant the accuracy implied, legal or conventional, of any marketing information kind or pamphlets listing or describing the Asset or the informationtype, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING.other than those representations and warranties expressly set forth in Section
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant and agree to and with the Seller that, except as otherwise expressly provided Notwithstanding anything contained in this Agreement to the contrary, it is expressly understood that, pursuant to this Article III, Buyer is being provided a period of sixty (60) days to obtain and review such Review Items pertaining to the Property as Buyer deems necessary and prudent and to make a full and complete physical inspection of the Property. The parties expressly agree that Seller shall have no obligation to cure any objections Buyer may have to any Review Item Issues identified in or in connection with any closing documents of the Review Items or to be delivered by correct or repair any title, survey, environmental, structural or other defect or anomaly which Buyer may discover or determine exists during the Seller Review Period. In the event Buyer nevertheless elects to proceed in accordance with the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (terms and any part thereof) in its existing condition conditions herein, BUYER UNDERSTANDS AND AGREES THAT SUCH ELECTION SHALL BE DEEMED TO BE A WAIVER OF ANY CLAIM THAT BUYER HAS OR MAY HAVE TO INDEMNIFICATION, RECOMPENSE, DAMAGE OR OTHER LEGAL OR EQUITABLE RELIEF AGAINST SELLER WITH RESPECT TO ANY OF THE FOREGOING, THAT BUYER SHALL ACQUIRE THE PROPERTY ON AN “AS IS, WHERE IS” BASIS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THAT BUYER SHALL HAVE NO CLAIM WHATSOEVER AGAINST SELLER FOR ANY CLOSING DOCUMENTS TO BE DELIVERED BY EXISTING PHYSICAL CONDITION OF THE SELLER TO THE BUYER AT CLOSING, THE SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER PROPERTY (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYANY ENVIRONMENTAL CONDITION), ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS NOR SHALL BUYER HAVE ANY CLAIM AGAINST SELLER FOR ANY OF THE LAND. THE FINANCIAL INFORMATION OR OTHER DOCUMENTATION HERETOFORE OR HEREAFTER SUBMITTED TO BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING CONNECTION WITH BUYER’S INSPECTION OF THE PROPERTY “AS IS” AND IN REVIEW OF ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGOPERATIONS.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendors set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendors nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendors’ right, title or interest in or to the Purchased Assets, including with respect to merchantability, physical or financial condition, description, location, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of any parts and/or components, latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or normal operation thereof, or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser.
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendors have made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendors, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendors expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent and whether or not discoverable or latent; (ii) the Seller has no obligation to inspect for, repair product liability claims, or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended usesimilar claims, and based upon same, the Buyer is all other claims that may be later created or conceived in strict liability or as strict liability type claims and will be relying strictly rights. For greater certainty and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent merge on Closing and is deemed incorporated by reference in all closing documents and deliveries. The Purchaser shall have no recourse or in any way warrant the accuracy claim of any marketing information or pamphlets listing or describing kind against the Asset or proceeds of the information, if any, provided transactions contemplated by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGthis Agreement following Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. The Purchaser acknowledges and agrees that:
(a) on the Closing Date, title to the Purchased Assets shall be subject to the Permitted Encumbrances;
(b) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely and solely upon its own inspections and investigations with respect to the Purchased Assets, including without limitation, the physical and environmental condition of the Leasehold Lands and Improvements, and the review of the documentation made available to the Purchaser pursuant to this Agreement, and the Purchaser acknowledges that it is not relying on any information furnished by the Vendor or any other person or entities on behalf of or at the direction of the Vendor in connection therewith; and
(c) the Vendor is selling the Purchased Assets on an “as is, where is” basis as they shall exist on the Closing Date and no adjustments shall be made for any changes in the condition of any Purchased Assets (other than the specific adjustments in Section 15 below). The Buyer Purchaser further acknowledges that it has entered into this Agreement on the basis that the Vendor does not warrant, covenant or guarantee title to the Purchased Assets and that the Purchaser has conducted such inspections of the condition of and title to the Purchased Assets, and the nature and quantum of the claims against the Purchased Assets, in each case as it deemed appropriate and has satisfied itself with regard to these matters; no representation, warranty or condition is expressed or can be implied as to title, description, fitness for purpose, merchantability, condition, assignability, collectability, quantity, outstanding amount, value or quality of, or in respect of any Purchased Assets or any other matter or thing whatsoever concerning the Purchased Assets or the right of the Vendor to sell same, save and except as expressly represented or warranted herein; and without limiting the generality of the foregoing, any and all conditions, warranties or representations expressed or implied pursuant to the Sale of Goods Act (Ontario) do not apply hereto and are hereby acknowledge, represent, warrant and agree to and waived by the Purchaser. The risk of loss of the Purchased Assets shall remain with the Seller thatVendor until the Closing Date and any property, except liability and other insurance shall remain the responsibility of the Vendor until the transfer/vesting of the Purchased Assets on the Closing Date. The Vendor shall have no obligations or responsibility to the Purchaser after the Closing Date with respect to any matter relating to the Purchased Assets or the condition thereof save as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms . The provisions of this Agreement in consideration thereof; (v) Section 7 shall not merge on, but shall survive, closing on the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGClosing Date.
Appears in 1 contract
Sources: Purchase and Sale Agreement
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendor set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendor nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendor’s right, title or interest in or to the Purchased Assets, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of any parts and/or components, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or normal operations thereof, or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendor has made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendor, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendor expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent and whether or not discoverable or latent; (ii) the Seller has no obligation to inspect for, repair product liability claims, or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended usesimilar claims, and based upon same, the Buyer is all other claims that may be later created or conceived in strict liability or as strict liability type claims and will be relying strictly rights. For greater certainty and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent merge on Closing and is deemed incorporated by reference in all closing documents and deliveries. The Purchaser shall have no recourse or in any way warrant the accuracy claim of any marketing information or pamphlets listing or describing kind against the Asset or proceeds of the information, if any, provided transactions contemplated by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGthis Agreement following Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. (a) The Buyer Purchaser acknowledges, represents and warrants that Purchaser is familiar with the business and affairs of Sellers and the Properties, and Purchaser does hereby acknowledgenot need any further information or data relating to Sellers or the Properties. Purchaser is acquiring the Properties based solely on its own independent investigation and inspection of the Properties and not in reliance on any information provided by Sellers. Purchaser acknowledges, representrepresents and warrants that Purchaser, warrant the Purchaser Related Parties and any permitted assignee of Purchaser thereof in accordance with Section 11.3 below, understand and agree to and with the Seller that, except as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: that (i) the Buyer is expressly purchasing Property Documents shall be made available for general information purposes only, (ii) Purchaser, the Asset (Purchaser Related Parties and any part thereofpermitted assignee of Purchaser in accordance with Section 11.3 below, shall not have any right to rely on any Property Documents and will not rely thereon, but rather will rely on inspections and reports performed by or on behalf of Purchaser, and (iii) BH Member, ▇▇-▇▇ JV and Sellers shall not have any liability for any inaccuracy in its existing condition “or omission from any of the Property Documents. THE PROPERTIES, AND ALL RIGHT, TITLE AND INTERESTS OF SELLERS THEREIN ARE, AS APPLICABLE, TO BE ASSIGNED, TRANSFERRED, CONVEYED AND/OR SOLD BY SELLERS, AND ARE HEREBY TO BE ACCEPTED BY PURCHASER, AS IS, WHERE IS, IS AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstancesAND, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT HEREIN, WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESSED OR IMPLIED, WRITTEN OR ORAL. SELLERS HEREBY DISCLAIM, AND PURCHASER INTENDS TO UNCONDITIONALLY WAIVE AND EXCLUDE, ALL REPRESENTATIONS AND WARRANTIES, INCLUDING ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES AS TO: (i) THE CONDITION OF THE PROPERTIES OR ANY ASPECT THEREOF (INCLUDING, WITHOUT LIMITATION, THE ASSUMED BUSINESS AGREEMENTS AND THE PERMITS AND WARRANTIES), INCLUDING ANY AND ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS AND WARRANTIES RELATED TO SUITABILITY FOR HABITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE; (ii) THE NATURE OR QUALITY OF DLI-6447995v8 18 CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF ANY OF THE IMPROVEMENTS; (iii) THE QUALITY OF THE LABOR OR MATERIALS INCLUDED IN ANY CLOSING DOCUMENTS OF THE IMPROVEMENTS; (iv) THE SOIL CONDITIONS, DRAINAGE, TOPOGRAPHICAL FEATURES OR OTHER CONDITIONS OF THE PROPERTIES OR WHICH AFFECT ANY ASPECTS THEREOF; (v) ANY FEATURES OR CONDITIONS AT OR WHICH AFFECT THE PROPERTIES OR ANY THEREOF WITH RESPECT TO BE DELIVERED ANY PARTICULAR PURPOSE, USE, DEVELOPMENTAL POTENTIAL, CASH FLOW OR OTHERWISE; (vi) ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE SELLER PROPERTIES OR ANY ASPECTS THEREOF OR ANY OF THE ASSUMED BUSINESS AGREEMENTS OR PERMITS AND WARRANTIES; (vii) ANY ENVIRONMENTAL, GEOLOGICAL, METEOROLOGICAL, STRUCTURAL OR OTHER CONDITION OR HAZARD OR THE ABSENCE THEREOF HERETOFORE, NOW OR HEREAFTER AFFECTING IN ANY MANNER THE PROPERTIES OR ANY THEREOF; (viii) CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE; (ix) PRODUCT LIABILITY CLAIMS IN ANY MANNER RELATED TO THE BUYER AT CLOSINGPROPERTIES OR ANY ASPECTS THEREOF; (x) ANY LAWS APPLICABLE TO THE PROPERTIES OR THE COMPLIANCE BY SELLERS OR THE PROPERTIES WITH ANY SUCH LAWS; (xi) ANY REVENUES OR EXPENSES GENERATED BY OR ASSOCIATED WITH THE PROPERTIES OR THE TRANSACTIONS CONTEMPLATED HEREIN; AND (xii) ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES AND REPRESENTATIONS BY ▇▇▇▇▇▇▇, ▇▇ MEMBER OR ▇▇-▇▇ JV WHATSOEVER.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT II, Inc.)
As Is, Where Is. (a) The Buyer does hereby acknowledgePurchaser represents that by reason of its business and financial experience and the business and financial experience of those persons retained by Purchaser to advise it with respect to its investment in the Properties, representPurchaser has sufficient knowledge, warrant sophistication, and agree experience in business and financial matters to evaluate the merits and risks of the prospective investment. Upon expiration of the Feasibility Period, Purchaser will have had an adequate opportunity and time to review and analyze the risks attendant to the transactions contemplated in this Agreement with the Seller assistance and guidance of competent professionals. Purchaser represents, warrants, and agrees that, except for the representations and warranties expressly set forth in Section 5.01 hereof or in any document or certificate executed by Seller pursuant to the terms of this Agreement, Purchaser is relying on its own inspections, examinations, and investigations in making the decision to purchase the Properties. PURCHASER ACKNOWLEDGES FOR PURCHASER AND PURCHASER’S SUCCESSORS, HEIRS AND ASSIGNEES, (I) PURCHASER HAS BEEN OR WILL PRIOR TO CLOSING BE GIVEN A REASONABLE OPPORTUNITY TO INSPECT AND INVESTIGATE THE PROPERTIES, ALL IMPROVEMENTS THEREON AND ALL ASPECTS RELATING THERETO, INCLUDING ALL DOCUMENTS, EITHER INDEPENDENTLY OR THROUGH AGENTS AND EXPERTS OF PURCHASER’S CHOOSING, AND (II) THAT PURCHASER IS ACQUIRING THE PROPERTIES BASED UPON PURCHASER’S OWN INVESTIGATION AND INSPECTION THEREOF.
(b) Except for the representations and warranties, indemnities and guaranties expressly set forth in Sections 5.01, 12.01 and 14.01(a) hereof or in any document or certificate executed by Seller pursuant to the terms of this Agreement, Purchaser is not relying and has not relied on Seller or any of Seller’s Indemnitees as to (i) the quality, nature, adequacy, or physical condition of the Properties, including the structural elements, foundations, roofs, appurtenances, access, landscaping, parking facilities, electrical, mechanical, HVAC, plumbing, sewage or utility systems, facilities, or appliances at the Properties or any portion of the Properties, (ii) the quality, nature, adequacy, or physical condition of soils or the existence of ground water which comprise a part of the Real Properties, (iii) the existence, quality, nature, adequacy, or physical condition of any utility serving the Real Property, (iv) the ad valorem Taxes now or hereafter payable on the Properties or the valuation of the Properties for ad valorem Tax purposes, (v) the development potential of the Real Property or the habitability, merchantability or fitness, suitability, or adequacy of the Properties or any portion thereof for any particular use or purpose, (vi) the zoning or other legal status of any portion of the Properties, (vii) the compliance by the Properties, or any portion of the Properties, or the operations conducted on or at the Properties, with any Environmental Laws or any other Legal Requirements or other covenants, conditions, or restrictions, (viii) the quality of any labor or materials relating in any manner to the Properties, or (ix) except as otherwise expressly provided in this Agreement or in any closing documents to be delivered by Agreement, the Seller condition of title to the Buyer at Closing: Properties or the nature, status, and extent of any right-of-way, lease, right of redemption, possession, lien, encumbrance, license, reservation, covenant, condition, restriction, or any other matter affecting title to the Properties.
(ic) the Buyer is expressly purchasing the Asset (and any part thereofEXCEPT FOR THE REPRESENTATIONS AND WARRANTIES, INDEMNITIES AND GUARANTIES EXPRESSLY SET FORTH IN SECTIONS 5.01, 12.01 AND 14.01(a) in its existing condition HEREOF OR IN ANY DOCUMENT OR CERTIFICATE EXECUTED BY SELLER PURSUANT TO THE TERMS OF THIS AGREEMENT, THE SALE AND CONVEYANCE BY SELLER TO PURCHASER OF ALL RIGHT, TITLE, AND INTEREST OF SELLER IN AND TO THE PROPERTIES WILL BE MADE WITHOUT ANY WARRANTY OR RECOURSE WHATSOEVER, IT BEING UNDERSTOOD THAT PURCHASER WILL TAKE THE PROPERTIES “AS IS, ” AND “WHERE IS.” WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EXCEPT FOR THE REPRESENTATIONS AND WITH ALL FAULTS” whether known or unknown with respect to all factsWARRANTIES, circumstancesINDEMNITIES AND GUARANTIES EXPRESSLY SET FORTH IN SECTIONS 5.01, conditions and defects, both patent and latent; (ii12.01 AND 14.01(a) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT HEREOF OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED DOCUMENT OR CERTIFICATE EXECUTED BY THE SELLER PURSUANT TO THE BUYER AT CLOSINGTERMS OF THIS AGREEMENT, THE PURCHASER ACKNOWLEDGES THAT SELLER HEREBY DISCLAIMS ALL HAS MADE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES)CHARACTER, WHETHER EXPRESSED EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYPROPERTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS AS TO TITLE, ABSENCE OF VICES OR DEFECTS (WHETHER APPARENT OR LATENT, KNOWN OR UNKNOWN, EASILY DISCOVERABLE OR HIDDEN), HABITABILITY, MERCHANTABILITY, FITNESS FOR ANY ORDINARY USE, FITNESS FOR ANY INTENDED USE OR PARTICULAR PURPOSE, ZONING, LAND VALUETAX CONSEQUENCES, AVAILABILITY OF ACCESS OR PHYSICAL CONDITION, UTILITIES, INGRESS OPERATING HISTORY OR EGRESSPROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTIES WITH LEGAL REQUIREMENTS, INCLUDING WITHOUT LIMITATION THE AMERICANS WITH DISABILITIES ACT OF 1990, 42 U.S.C. 12101, ET SEQ., THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY MATERIALS, DATA, OR INFORMATION PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR THE SOIL CONDITIONS MANNER OR QUALITY OF THE LAND. CONSTRUCTION OR MATERIALS INCORPORATED INTO THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND PROPERTIES OR THE PROPERTYMANNER OF REPAIR, AND THATQUALITY, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTIES OR ANY PORTION THEREOF. UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE OTHER DOCUMENT OR CERTIFICATE EXECUTED AND DELIVERED BY THE SELLER PURSUANT TO THE BUYER AT CLOSINGTERMS OF THIS AGREEMENT, ALL SUCH WARRANTIES WITH RESPECT TO THE PROPERTIES ARE HEREBY DISCLAIMED BY SELLER AND EXPRESSLY WAIVED BY PURCHASER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES, INDEMNITIES AND GUARANTIES EXPRESSLY SET FORTH IN SECTIONS 5.01, 12.01 AND 14.01(a) HEREOF OR IN ANY DOCUMENT OR CERTIFICATE EXECUTED BY SELLER PURSUANT TO THE TERMS OF THIS AGREEMENT, PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING OR RELATING TO THE PROPERTIES MADE OR FURNISHED BY SELLER, ANY PARTY ACTING OR PURPORTING TO ACT FOR SELLER, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, VERBALLY OR IN WRITING. PURCHASER FURTHER HAS NOT RELIED ON SELLER’S SKILL OR JUDGMENT IN SELECTING THE PROPERTIES.
(d) NEITHER PURCHASER NOR SELLER SHALL BE LIABLE FOR ANY SPECULATIVE PROFITS, OR SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT, OR NEGLIGENCE OR IN ANY OTHER MANNER ARISING FROM THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, EXCEPT IN THE EVENT OF FRAUD OR AS SET FORTH IN SECTION 17.02(b). THE PROVISIONS OF THIS SECTION 2.02(d) SHALL NOT LIMIT OR AFFECT THE RIGHTS OF EITHER PARTY UNDER ARTICLE XVII OR ANY EXPRESS INDEMNITY PROVISIONS OF THIS AGREEMENT, OR THE RIGHT TO SPECIFIC PERFORMANCE OR LIQUIDATED DAMAGES WHERE SUCH A REMEDY IS SPECIFICALLY PERMITTED HEREUNDER.
(e) PURCHASER HEREBY RELEASES SELLER FROM ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES WHICH PURCHASER HAS OR MAY HAVE ARISING FROM OR RELATED TO ANY MATTER OR THING RELATED TO THE PHYSICAL CONDITION OF THE PROPERTIES, ANY CONSTRUCTION DEFECTS, ANY ERRORS OR OMISSIONS IN THE DESIGN OR CONSTRUCTION OF THE PROPERTIES AND ANY ENVIRONMENTAL CONDITIONS AT, IN OR UNDER THE PROPERTIES, AND PURCHASER WILL NOT LOOK TO SELLER OR ANY SELLER INDEMNITEE IN CONNECTION WITH THE FOREGOING FOR ANY REDRESS OR RELIEF.
(f) PURCHASER AND SELLER FURTHER DECLARE AND ACKNOWLEDGE THAT THE FOREGOING WAIVERS HAVE BEEN BROUGHT TO THE ATTENTION OF PURCHASER AND SELLER, AND EXPLAINED IN DETAIL, AND THAT PURCHASER AND SELLER HAVE VOLUNTARILY AND KNOWINGLY CONSENTED TO THE FOREGOING WAIVERS. PURCHASER AND SELLER FURTHER DECLARE AND ACKNOWLEDGE THAT THE FOREGOING RELEASES WILL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF THEIR EXPRESS TERMS AND PROVISIONS, INCLUDING THOSE RELATING TO UNKNOWN AND UNSUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION AND STRICT LIABILITY CLAIMS. Seller’s Initials: Purchasers Initials: /s/ LS /s/ JM
(g) The provisions of this Section 2.02 shall survive the Closing or termination of this Agreement.
Appears in 1 contract
Sources: Agreement for Sale and Purchase (American Realty Capital Hospitality Trust, Inc.)
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendor set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk and peril of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendor nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the physical condition of the Purchased Assets, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of any parts and/or components, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or normal operations thereof, or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendor has made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendor, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendor expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent and whether or not discoverable or latent; (ii) the Seller has no obligation to inspect for, repair product liability claims, or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended usesimilar claims, and based upon same, the Buyer is all other claims that may be later created or conceived in strict liability or as strict liability type claims and will be relying strictly rights. For greater certainty and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent merge on Closing and is deemed incorporated by reference in all closing documents and deliveries. The Purchaser shall have no recourse or in any way warrant the accuracy claim of any marketing information or pamphlets listing or describing kind against the Asset or proceeds of the information, if any, provided transactions contemplated by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGthis Agreement following Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant acknowledges and agree to and with the Seller agrees that, except only as otherwise expressly provided in this Agreement Article 5 above, Seller makes no representations or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS ISwarranties whatsoever, WHERE ISexpress or implied, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller matter relating to the Buyer Assets (whether prepared by including, without limitation, income to be derived or for expenses to be incurred in connection with the Seller or others) or the educationAssets, skills, competence or diligence of the preparers thereof or the physical condition of any tangible Assets, the environmental condition or other matter relating to the physical condition of any Real Property, the zoning of any Real Property, the value of the Assets (or any portion thereof), the transferability of the Assets or any portion thereof, the terms, amount, validity, collectability or enforceability of any accounts receivable, Contract or Assumed Liability included within the Assets, the merchantability or fitness of any inventory or personal property included within the Assets for any particular purpose, or any other aspect of all matter or thing relating to the Assets or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purposeportion thereof). Without in any way limiting the generality of any of the foregoing, Seller hereby disclaims any warranty (express or implied) of merchantability or fitness for any particular purpose as to any portion of the Assets. Buyer specifically further acknowledges that Buyer has conducted an independent inspection and investigation of the Seller does not represent physical condition of the Assets and all such other matters relating to or affecting or comprising the Assets and/or the Assumed Liabilities as Buyer deemed necessary or appropriate and that in any way warrant proceeding with its purchase and acquisition of the accuracy of any marketing information or pamphlets listing or describing Assets, Buyer is doing so based solely upon such independent inspections and investigations. Accordingly, except only for the Asset or representations set forth in Section 5 above, Buyer will accept the information, if any, provided by Assets at the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY Closing “AS IS,” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER “WHERE IS,” and “WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGALL FAULTS.”
Appears in 1 contract
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendor set forth in Section 4.2, representit is entering into this Agreement and the Deed of Transfer, warrant acquiring the Purchased Assets, assuming the Assumed Liabilities and agree agreeing to be responsible for the Environmental Liabilities on an “as is, where is” basis as they exist as of the Closing Time and will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk and peril of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets, the Assumed Liabilities and the Environmental Liabilities as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendor nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendor’s right, title or interest in or to the Purchased Assets, the Assumed Liabilities or the Environmental Liabilities, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets, the Assumed Liabilities or the Environmental Liabilities or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendor has made no representation or warranty as to any Regulatory Approvals, Permits, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets, the Assumed Liabilities and the Environmental Liabilities has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets, the Assumed Liabilities or the Environmental Liabilities in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions;
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendor, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendor expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent whether or not discoverable or latent, product liability claims, or similar claims, and latentall other claims that may be later created or conceived in strict liability or as strict liability type claims and rights; and
(ii9) none of the Seller has no obligation representations and warranties of the Vendor contained in this Agreement shall survive Closing and, subject to inspect forSection 8.3(2), repair the Purchaser’s sole recourse for any breach of representation or correct any such facts, circumstances, conditions or defects or warranty of the Vendor in Section 4.2 shall be for the Purchaser not to compensate Buyer for same; (iii) complete the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries transactions as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) Agreement and for greater certainty the Seller has specifically bargained for Purchaser shall have no recourse or claim of any kind against the assumption Vendor or the proceeds of the transactions contemplated by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections following Closing. For greater certainty and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent or merge on Closing and is deemed incorporated by reference in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGall closing documents and deliveries.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendor set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendor nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendor’s right, title or interest in or to the Purchased Assets, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendor has made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or in potential rights or claims the Purchaser might have against the Vendor, any closing documents member of the SISP Team or any of the SISP Team’s Representatives pursuant to be delivered any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Seller to Vendor expressly set forth in Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, any warranties contained in the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (Civil Code of Québec, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and any part thereof) in its existing condition “AS ISclaims of every kind and type, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and including claims regarding defects, both patent and whether or not discoverable or latent; (ii) the Seller has no obligation to inspect for, repair product liability claims, or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended usesimilar claims, and based upon same, the Buyer is all other claims that may be later created or conceived in strict liability or as strict liability type claims and will be relying strictly rights. For greater certainty and solely upon such inspections and examinations and the advice and counsel of its own consultants, agents, legal counsel and officers, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without without limiting the generality of any of the foregoing, the Buyer specifically acknowledges Parties hereby agree to exclude altogether the effect of the legal warranty provided for by article 1716 of the Civil Code of Québec and that the Seller does Purchaser is purchasing the Purchased Assets at its own risk within the meaning of article 1733 of the Civil Code of Québec. This Section 4.3 shall not represent merge on Closing and is deemed incorporated by reference in all closing documents and deliveries. The Purchaser shall have no recourse or in any way warrant the accuracy claim of any marketing information or pamphlets listing or describing kind against the Asset or proceeds of the information, if any, provided transactions contemplated by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGthis Agreement following Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant Purchaser acknowledges and agree to and with the Seller agrees that, except as otherwise expressly set forth herein and in the documents executed and delivered by Seller at Closing hereunder, it is acquiring the Property in its “as is” and “where is” condition with all faults, without any representations or warranties of any kind or character, express or implied. Purchaser acknowledges that it has had or will have pursuant to the provisions of this Agreement the opportunity to make such inspections as it desires of the Property and all facts relevant to its use. Purchaser acknowledges that it is relying upon its own investigations of the Property and not on any information provided or to be provided by Seller except as expressly set forth in this Agreement or in any closing the documents to be executed and delivered by the Seller to Purchaser at Closing . The provisions of this Section 6.5 shall survive the Buyer at Closing: (i) Closing or the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition termination of this Agreement. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts”, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR IN THE OTHER DOCUMENTS DELIVERED AT CLOSING. PURCHASER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE BUYER AT CLOSING, THE SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND PROPERTY OR NATURE WHATSOEVER RELATING THERETO (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES)SPECIFICALLY, WHETHER EXPRESSED WITHOUT LIMITATION, ANY PROSPECTUS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OTHER MARKETING MATERIALS DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY SELLER, ZONING, LAND VALUE, AVAILABILITY THE MANAGERS OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALSTHE PROPERTY, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THATANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING TO REPRESENT SELLER, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING THE OTHER DOCUMENTS DELIVERED AT CLOSING. PURCHASER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD “AS-IS.” PURCHASER ACKNOWLEDGES RECEIPT OF THE ENVIRONMENTAL REPORTS LISTED ON EXHIBIT E (AND ACKNOWLEDGES THAT THE REPORTS REFERRED TO THEREIN WERE MADE AVAILABLE TO PURCHASER), AND REPRESENTS TO SELLER THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER TAKEN WITH RESPECT TO THE LAND ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND THATWILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO, IN FACTOTHER THAN SUCH REPRESENTATIONS, NO SUCH REPRESENTATIONS WERE MADE EXCEPT WARRANTIES AND COVENANTS OF SELLER AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING THE OTHER DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING. OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OR IN THE OTHER DOCUMENTS DELIVERED AT CLOSING, UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER’S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION OR OTHER DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Fund Xiv Lp)
As Is, Where Is. (a) The Buyer does hereby acknowledge, represent, warrant and agree to and with the Seller that, except as otherwise expressly provided Notwithstanding anything contained in this Agreement to the contrary, it is expressly understood that, pursuant to this Article III, Buyer is being provided the Review Period of sixty (60) days to obtain and review such Review Items pertaining to the Property as Buyer deems necessary and prudent and to make a full and complete physical inspection of the Property. The parties expressly agree that Seller shall have no obligation to cure any objections Buyer may have to any Review Item Issues identified in or in connection with any closing documents of the Review Items or to be delivered by correct or repair any title, survey, environmental, structural or other defect or anomaly which Buyer may discover or determine exists during the Seller Review Period. In the event Buyer nevertheless elects to proceed in accordance with the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (terms and any part thereof) in its existing condition conditions herein, BUYER UNDERSTANDS AND AGREES THAT SUCH ELECTION SHALL BE DEEMED TO BE A WAIVER OF ANY CLAIM THAT BUYER HAS OR MAY HAVE TO INDEMNIFICATION, RECOMPENSE, DAMAGE OR OTHER LEGAL OR EQUITABLE RELIEF AGAINST SELLER WITH RESPECT TO ANY OF THE FOREGOING, THAT BUYER SHALL ACQUIRE THE PROPERTY ON AN “AS IS, WHERE IS” BASIS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN THAT BUYER SHALL HAVE NO CLAIM WHATSOEVER AGAINST SELLER FOR ANY CLOSING DOCUMENTS TO BE DELIVERED BY EXISTING PHYSICAL CONDITION OF THE SELLER TO THE BUYER AT CLOSING, THE SELLER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE WHATSOEVER PROPERTY (INCLUDING WARRANTIES OF HABITABILITY AND FITNESS FOR PARTICULAR PURPOSES), WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTYANY ENVIRONMENTAL CONDITION), ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS NOR SHALL BUYER HAVE ANY CLAIM AGAINST SELLER FOR ANY OF THE LAND. THE FINANCIAL INFORMATION OR OTHER DOCUMENTATION HERETOFORE OR HEREAFTER SUBMITTED TO BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING CONNECTION WITH BUYER’S INSPECTION OF THE PROPERTY “AS IS” AND IN REVIEW OF ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGOPERATIONS.
Appears in 1 contract
Sources: Real Estate Purchase and Sale Agreement (Wheeler Real Estate Investment Trust, Inc.)
As Is, Where Is. Notwithstanding any other provision of this Agreement, the Purchaser acknowledges, agrees and confirms that:
(a1) The Buyer does hereby acknowledgeexcept for the representations and warranties of the Vendors set forth in Section 4.2, representit is entering into this Agreement, warrant acquiring the Purchased Assets on an “as is, where is” basis as they exist as of the Closing Time and agree will accept the Purchased Assets in their state, condition and location as of the Closing Time except as expressly set forth in this Agreement and the sale of the Purchased Assets is made without legal warranty and at the risk of the Purchaser;
(2) it has conducted to its satisfaction such independent searches, investigations and inspections of the Purchased Assets as it deemed appropriate, and based solely thereon, has determined to proceed with the Seller thattransactions contemplated by this Agreement;
(3) except as expressly stated in Section 4.2, neither the Vendors nor any other Person is making, and the Purchaser is not relying on, any representations, warranties, statements or promises, express or implied, statutory or otherwise, concerning the Purchased Assets, the Vendors’ right, title or interest in or to the Purchased Assets, including with respect to merchantability, physical or financial condition, description, fitness for a particular purposes, suitability for development, title, description, use or zoning, environmental condition, existence of latent defects, quality, quantity or any other thing affecting any of the Purchased Assets or in respect of any other matter or thing whatsoever, including any and all conditions, warranties or representations expressed or implied pursuant to any Applicable Law in any jurisdiction, which the Purchaser confirms do not apply to this Agreement and are hereby waived in their entirety by the Purchaser;
(4) without limiting the generality of the foregoing, no representation, warranty or covenant is given by any member of the SISP Team or any of the SISP Team’s Representatives that the Purchased Assets are or can be made operational within a specified time frame or will achieve any particular level of service, use, production capacity or actual production if made operational;
(5) without limiting the generality of the foregoing, except as expressly stated in Section 4.2, the Vendors have made no representation or warranty as to any regulatory approvals, permits and licenses, consents or authorizations that may be needed to complete the transactions contemplated by this Agreement or to operate the Purchased Assets, and the Purchaser is relying entirely on its own investigation, due diligence and inquiries in connection with such matters;
(6) all written and oral information obtained from any member of the SISP Team or any of the SISP Team’s Representatives, including in any teaser letter, asset listing, confidential information memorandum or other document made available to the Purchaser (including in certain “data rooms”, management presentations, site visits and diligence meetings or telephone calls), with respect to the Purchased Assets has been obtained for the convenience of the Purchaser only, and no member of the SISP Team nor any of the SISP Team’s Representatives have made any representation or warranty, express or implied, statutory or otherwise as to the accuracy or completeness of any such information;
(7) any information regarding or describing the Purchased Assets in this Agreement (including the Schedules hereto), or in any other agreement or instrument contemplated hereby, is for identification purposes only, is not relied upon by the Purchaser, and no representation, warranty or condition, express or implied, has or will be given by any member of the SISP Team or any of the SISP Team’s Representatives, or any other Person concerning the completeness or accuracy of such information or descriptions; and
(8) except as otherwise expressly provided in this Agreement Agreement, the Purchaser hereby unconditionally and irrevocably waives any and all actual or potential rights or claims the Purchaser might have against the Vendors, any member of the SISP Team or any of the SISP Team’s Representatives pursuant to any warranty, express or implied, legal or conventional, of any kind or type, other than those representations and warranties by the Vendors expressly set forth in any Section 4.2. Such waiver is absolute, unlimited, and includes, but is not limited to, waiver of express warranties, implied warranties, warranties of fitness for a particular use, warranties of merchantability, warranties of occupancy, strict liability and claims of every kind and type, including claims regarding defects, whether or not discoverable or latent, product liability claims, or similar claims, and all other claims that may be later created or conceived in strict liability or as strict liability type claims and rights. This Section 4.3 shall not merge on Closing and is deemed incorporated by reference in all closing documents to be delivered by and deliveries. The Purchaser shall have no recourse or claim of any kind against the Seller to proceeds of the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction transactions contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGfollowing Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
As Is, Where Is. (a) The Buyer does hereby acknowledgePurchaser acknowledges and agrees that except as provided herein, representthe Purchased Assets are purchased on an "as is, warrant where is" basis and agree to that the Purchaser has inspected the Purchased Assets and is relying entirely on its own investigations and inspections in proceeding with the Seller that, except as otherwise expressly provided in this Agreement or in any closing documents to be delivered by the Seller to the Buyer at Closing: (i) the Buyer is expressly purchasing the Asset (and any part thereof) in its existing condition “AS IS, WHERE IS, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purposeTransactions. Without limiting the generality of any of the foregoing, the Buyer specifically Purchaser expressly confirms, acknowledges and agrees that, at the Time of Closing, the Purchaser will accept the Purchased Assets in their then-present state, condition and location, and that the Vendor has made no representations or warranties, and there are no terms, conditions, understandings or collateral agreements, express or implied, by statute or otherwise (including, without limitation, under the Sale of Goods Act (Ontario)), all of which are expressly waived, with respect to title, encumbrances, rights of third parties, assignability, merchantability, removeability, condition, description, fitness for purpose, quality, quantity, cost or as to any other matter whatsoever of the Purchased Assets, or otherwise of or concerning the Purchased Assets or the right of the Vendor to sell, transfer or assign the same, save and except for the express representations and warranties given in Section 4.01, The Purchaser acknowledges that the Seller does not represent Purchased Assets are specifically being purchased as they will exist on the Closing Date with no adjustment to be allowed to the Purchaser for any changes in the condition of the Purchased Assets from the date hereof to the Closing Date save and except as otherwise provided in this Agreement, The . Purchaser acknowledges that any description and information of the Purchased Assets provided by the Vendor or in any way warrant asset list, information package, and all other documents relating or ancillary thereto, have been prepared solely for the accuracy convenience of prospective purchasers and are not warranted to be complete, accurate or correct, that such descriptions and information do not constitute part of any marketing information tem-is and conditions of sale of the Purchased Assets. The Purchaser further acknowledges that the descriptions of the Purchased Assets contained in the annexed Schedules are for the purpose of identification only and there is no condition, warranty or pamphlets listing or describing the Asset or the information, if any, provided representation by the Seller Vendor concerning the accuracy, completeness or any other matter concerning those descriptions. The foregoing provisions of this Section 2.03 are without prejudice to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSINGrights conferred on the Purchaser under Section 2.06.
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Rachels Gourmet Snacks Inc)
As Is, Where Is. (a) The Buyer does hereby acknowledgePurchaser acknowledges that the Purchased Assets are purchased on an “as is, represent, warrant where is” basis and agree to and with the Seller that, without any representation or warranty of any kind except as otherwise expressly provided herein, and that the Receiver has not, and is not required to inspect the Purchased Assets. The Purchaser further acknowledges that it has had an opportunity to conduct and has or will complete its due diligence regarding the Purchased Assets, and will be satisfied as to their quality and condition and will accept the same on the Closing Date in their state, condition, and location existing as of the date of this Agreement, reasonable wear and tear excepted. The Purchaser further acknowledges it is in possession of the Lands under an existing lease. For greater certainty the Purchaser acknowledges that the Receiver, the Receiver’s Solicitor, the Company, and any of their directors, officers, employees, professional consultants, agents, or advisors make, or has made, no representation, promise, condition, warranty, or guaranty, whether statutory (including under The Sale of Goods Act (Saskatchewan) or similar legislation in other jurisdictions applicable hereto and all of the same are hereby waived by the Purchaser), express or implied, oral or written, legal, equitable, conventional, collateral or otherwise in this Agreement or in any closing documents instrument furnished in connection with this Agreement as to title, outstanding liens, description, fitness for purpose, merchantability, acreage or workable acreage, condition, quality, value, suitability, durability, compliance or non-compliance with environmental rules, regulations or legislative provisions, zoning, or site plan requirements or marketability thereof or in respect of any other matter or thing whatsoever including, without limitation, the rights, title, and interests of the Company, if any, therein and wherever all or part of the Purchased Assets are situated. The Purchaser shall be delivered by deemed to have relied entirely on its own independent review, inspection, and investigation in proceeding with the Seller transaction contemplated hereunder, and acknowledges that the Receiver has made no representations as to the Buyer at Closing: (i) accuracy and completeness of the Buyer is expressly purchasing Schedules, and as such the Asset (Purchaser shall have no recourse as against the Receiver, the Company, and any part thereof) of their directors, officers, employees, professional consultants, agents, advisors, or the Receiver’s Solicitor, in its existing condition “AS ISLaw or equity for any deficiency, WHERE ISperceived or otherwise, AND WITH ALL FAULTS” whether known or unknown with respect to all facts, circumstances, conditions and defects, both patent and latent; (ii) the Seller has no obligation to inspect for, repair or correct any such facts, circumstances, conditions or defects or to compensate Buyer for same; (iii) the Seller has provided the Buyer sufficient opportunity to make such independent factual, physical and legal examinations and inquiries as the Buyer deems necessary or appropriate with respect to the Asset and the transaction contemplated by Purchased Assets pursuant to this Agreement; (iv) the Seller has specifically bargained for the assumption by the Buyer of all responsibility to inspect and investigate the Asset and of all risk of adverse conditions and has structured the Purchase Price and other terms of this Agreement in consideration thereof; (v) the Buyer has undertaken or will undertake all such inspections and investigations of the Asset as the Buyer deems necessary or appropriate with respect to the Asset and the suitability of the Asset for Buyer’s intended use, and based upon same, the Buyer 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, the Buyer has approved or will approve the Asset in all respects, and the Buyer is and will be fully satisfied that the Purchase Price is fair and adequate consideration for the Asset; and (vi) the Seller is not making and has not made any warranty or representation with respect to any materials or other data provided by the Seller to the Buyer (whether prepared by or for the Seller or others) or the education, skills, competence or diligence of the preparers thereof or the physical condition or any other aspect of all or any part of the Asset as an inducement to the Buyer to enter into this Agreement and thereafter to purchase the Asset or for any other purpose. Without limiting the generality of any of the foregoing, the Buyer specifically acknowledges that the Seller does not represent or in any way warrant the accuracy of any marketing information or pamphlets listing or describing the Asset or the information, if any, provided by the Seller to the Buyer; and
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE 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, BUT NOT LIMITED TO WARRANTIES WITH RESPECT TO THE PROPERTY, ZONING, LAND VALUE, AVAILABILITY OF ACCESS OR UTILITIES, INGRESS OR EGRESS, GOVERNMENTAL APPROVALS, OR THE SOIL CONDITIONS OF THE LAND. THE BUYER FURTHER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, BUYER IS BUYING THE PROPERTY “AS IS” AND IN ITS PRESENT CONDITION AND THAT EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING, THE BUYER IS NOT RELYING UPON ANY OTHER REPRESENTATION OF ANY KIND OR NATURE MADE BY THE SELLER WITH RESPECT TO THE LAND OR THE PROPERTY, AND THAT, IN FACT, NO SUCH REPRESENTATIONS WERE MADE EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS TO BE DELIVERED BY THE SELLER TO THE BUYER AT CLOSING.
Appears in 1 contract
Sources: Asset Purchase Agreement