Common use of Due Diligence and Disclaimer of Warranties Clause in Contracts

Due Diligence and Disclaimer of Warranties. 5.1 Buyer acknowledges that Seller has (i) given Buyer, its lenders, and its accounting, legal, business, environmental, engineering, intellectual property and other authorized representatives and advisors full access, during normal business hours, to the Real Properties, and (ii) furnished Buyer and its authorized representatives and advisors with all documents and information relating to the Property as reasonably requested by Buyer, its lenders, and its authorized representatives and advisors, (iii) permitted Buyer and its authorized representatives and advisors to review all books, records of Seller as requested by Buyer and its authorized representatives and advisors, and made copies thereof, and (iv) fully cooperated with Buyer and its authorized representatives and advisors in its investigation and examination of the Property. No investigation, or receipt of information provided by or on behalf of Seller or review thereof by Buyer, its lenders, or its representatives or advisors has diminished or obviated, or relieved Seller from, or affected the ability or right of Buyer to rely on, any of the representations, warranties, covenants and agreements of Seller contained in this Agreement and the Seller Documents. Buyer acknowledges that its obligations to consummate the transactions contemplated hereby are not subject to any further due diligence investigation by Buyer. 5.2 Buyer acknowledges that it has received information about the Property (the “Confidential Information”). Buyer agrees to continue to be bound by all agreements under which it received such Confidential Information, including that certain confidentiality agreement entered into before the date hereof between Lehigh Gas Corporation and Matrix (as defined in Section 6.4 below) for the benefit of Seller (the “Confidentiality Agreement”). If this Agreement is terminated before the Closing, Buyer promptly shall return to Seller or destroy all Confidential Information and shall not retain copies thereof, including all information, testing, studies, surveys, reports and evaluations (environmental and financial, for example), and at no cost to Seller Buyer shall provide Seller with complete copies of all third party engineering and environmental reports obtained by Buyer in connection with the Real Properties. 5.3 At its sole expense, Buyer shall have the right to perform an Environmental Site Assessment (“ESA”) at the Real Properties before the Closing, provided the ESA conforms to Schedule 7.3 of the SPA and applicable ASTM standards, does not damage or interfere with the operation of the Real Properties and Buyer provides Seller with a copy of the ESA report promptly after the report is issued. Buyer shall indemnify and hold Seller harmless for the acts of Buyer and/or Buyer’s agents, employees or contractors in performing the ESA. Buyer shall return each Real Property to its previous condition upon completion of its activities in connection with the ESA. Buyer’s conduct of an ESA shall not be a condition to the Closing, and failure to perform or complete the ESA shall not extend the date for the Closing. 5.4 If Buyer’s due diligence reveals any condition at the Real Properties that requires disclosure to any governmental agency or authority, Buyer shall immediately (a) notify Seller thereof, and (b) provide all data and analysis concerning the condition acquired during the due diligence process including without limitation, the ESA. Buyer acknowledges that applicable rules (including particularly Rule 62-770.250, FAC) may require notification to a governmental agency within twenty-four (24) hours of occurrence, and Buyer agrees to take all reasonable steps necessary to support the ability of Seller to meet this obligation. Except as provided by Law, in such event, at all times prior to the Closing, Seller, and not Buyer, Buyer’s agents, or anyone acting on Buyer’s behalf, shall make such legal determinations regarding disclosures as Seller deems appropriate. 5.5 Buyer specifically acknowledges that, except for Seller’s representations in this Agreement and the Seller Documents, and subject to Seller’s obligations as contained in this Agreement, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, Matrix, Shareholders, or any director, officer, employee, representative, broker or other agent of Seller or Matrix, as to any matters concerning the Property, including: (a) the condition or safety of the Real Properties, including plumbing, sewer, heating and electrical systems, roofing, air conditioning, if any, foundations, soils and geology, lot size, or suitability of the Real Properties for a particular purpose; (b) whether the appliances, if any, plumbing or utilities are in working order; (c) the habitability or suitability for occupancy of any structure and the quality of its construction; (d) the fitness or condition of any Personal Property; (e) whether the Improvements, including the Fuel Equipment, are structurally sound, in good condition, or in compliance with applicable Laws; (f) the profits or losses relating to operations at the Real Properties; (g) the legal or tax consequences of this Agreement or the transactions contemplated hereby; (h) the environmental condition of the Real Properties, including but not limited to the possible presence of petroleum products and/or Hazardous Substances in, under or near the Real Properties; and (i) the completeness or accuracy of any information provided to Buyer by Seller or Seller’s agents. Buyer understands the legal significance of the foregoing provisions and acknowledges that they are a material inducement to Seller’s willingness to enter into this Agreement. 5.6 BUYER ACKNOWLEDGES THAT BUYER HAS BEEN GIVEN THE OPPORTUNITY TO EXAMINE ALL ASPECTS OF THE PROPERTY AND TO REVIEW ALL FILES CONCERNING THE PROPERTY MAINTAINED BY SELLER AND ITS ENVIRONMENTAL CONSULTANTS AND ALL STATE AGENCIES HAVING JURISDICTION OVER THE REAL PROPERTIES BEFORE BUYER’S EXECUTION AND DELIVERY OF THIS AGREEMENT. ACCORDINGLY, BUYER AGREES THAT THE PROPERTY SHALL BE SOLD AND THAT BUYER SHALL ACCEPT THE PROPERTY AT CLOSING STRICTLY ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE EXCEPT FOR ADJUSTMENTS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT AND THAT, EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT AND THE SELLER DOCUMENTS, THE SALE OF THE PROPERTY AND OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY. 5.7 RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH DEPARTMENT.

Due Diligence and Disclaimer of Warranties. 5.1 Buyer acknowledges that Seller has (i) given Buyer, its lenders, and its accounting, legal, business, environmental, engineering, intellectual property and other authorized representatives and advisors full access, during normal business hours, to the Real Properties, and (ii) furnished Buyer and its authorized representatives and advisors with all documents and information relating to the Property as reasonably requested by Buyer, its lenders, and its authorized representatives and advisors, (iii) permitted Buyer and its authorized representatives and advisors to review all books, records of Seller as requested by Buyer and its authorized representatives and advisors, and made copies thereof, and (iv) fully cooperated with Buyer and its authorized representatives and advisors in its investigation and examination of the Property. No investigation, or receipt of information provided by or on behalf of Seller or review thereof by Buyer, its lenders, or its representatives or advisors has diminished or obviated, or relieved Seller from, or affected the ability or right of Buyer to rely on, any of the representations, warranties, covenants and agreements of Seller contained in this Agreement and the Seller Documents. Buyer acknowledges that its obligations to consummate the transactions contemplated hereby are not subject to any further due diligence investigation by Buyer. 5.2 Buyer acknowledges that it has received information about the Property (the “Confidential Information”). Buyer agrees to continue to be bound by all agreements under which it received such Confidential Information, including that certain confidentiality agreement entered into before the date hereof between Lehigh Gas Corporation and Matrix (as defined in Section 6.4 below) for the benefit of Seller (the “Confidentiality Agreement”). If this Agreement is terminated before the Closing, Buyer promptly shall return to Seller or destroy all Confidential Information and shall not retain copies thereof, including all information, testing, studies, surveys, reports and evaluations (environmental and financial, for example), and at no cost to Seller Buyer shall provide Seller with complete copies of all third party engineering and environmental reports obtained by Buyer in connection with the Real Properties., 5.3 At its sole expense, Buyer shall have the right to perform an Environmental Site Assessment (“ESA”) at the Real Properties before the Closing, provided the ESA conforms to Schedule 7.3 of the SPA and applicable ASTM standards, does not damage or interfere with the operation of the Real Properties and Buyer provides Seller with a copy of the ESA report promptly after the report is issued. Buyer shall indemnify and hold Seller harmless for the acts of Buyer and/or Buyer’s agents, employees or contractors in performing the ESA. Buyer shall return each Real Property to its previous condition upon completion of its activities in connection with the ESA. Buyer’s conduct of an ESA shall not be a condition to the Closing, and failure to perform or complete the ESA shall not extend the date for the Closing. 5.4 If Buyer’s due diligence reveals any condition at the Real Properties that requires disclosure to any governmental agency or authority, Buyer shall immediately (a) notify Seller thereof, and (b) provide all data and analysis concerning the condition acquired during the due diligence process including without limitation, the ESA. Buyer acknowledges that applicable rules (including particularly Rule 62-62- 770.250, FAC) may require notification to a governmental agency within twenty-four (24) hours of occurrence, and Buyer agrees to take all reasonable steps necessary to support the ability of Seller to meet this obligation. Except as provided by Law, in such event, at all times prior to the Closing, Seller, and not Buyer, Buyer’s agents, or anyone acting on Buyer’s behalf, shall make such legal determinations regarding disclosures as Seller deems appropriate. 5.5 Buyer specifically acknowledges that, except for Seller’s representations in this Agreement and the Seller Documents, and subject to Seller’s obligations as contained in this Agreement, Buyer is not relying on any representations or warranties of any kind whatsoever, express or implied, from Seller, Matrix, Shareholders, or any director, officer, employee, representative, broker or other agent of Seller or Matrix, as to any matters concerning the Property, including: (a) the condition or safety of the Real Properties, including plumbing, sewer, heating and electrical systems, roofing, air conditioning, if any, foundations, soils and geology, lot size, or suitability of the Real Properties for a particular purpose; (b) whether the appliances, if any, plumbing or utilities are in working order; (c) the habitability or suitability for occupancy of any structure and the quality of its construction; (d) the fitness or condition of any Personal Property; (e) whether the Improvements, including the Fuel Equipment, are structurally sound, in good condition, or in compliance with applicable Laws; (f) the profits or losses relating to operations at the Real Properties; (g) the legal or tax consequences of this Agreement or the transactions contemplated hereby; (h) the environmental condition of the Real Properties, including but not limited to the possible presence of petroleum products and/or Hazardous Substances in, under or near the Real Properties; and (i) the completeness or accuracy of any information provided to Buyer by Seller or Seller’s agents. Buyer understands the legal significance of the foregoing provisions and acknowledges that they are a material inducement to Seller’s willingness to enter into this Agreement. 5.6 BUYER ACKNOWLEDGES THAT BUYER HAS BEEN GIVEN THE OPPORTUNITY TO EXAMINE ALL ASPECTS OF THE PROPERTY AND TO REVIEW ALL FILES CONCERNING THE PROPERTY MAINTAINED BY SELLER AND ITS ENVIRONMENTAL CONSULTANTS AND ALL STATE AGENCIES HAVING JURISDICTION OVER THE REAL PROPERTIES BEFORE BUYER’S EXECUTION AND DELIVERY OF THIS AGREEMENT. ACCORDINGLY, BUYER AGREES THAT THE PROPERTY SHALL BE SOLD AND THAT BUYER SHALL ACCEPT THE PROPERTY AT CLOSING STRICTLY ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS, WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE EXCEPT FOR ADJUSTMENTS EXPRESSLY CONTEMPLATED BY THIS AGREEMENT AND THAT, EXCEPT FOR SELLER’S REPRESENTATIONS SET FORTH IN THIS AGREEMENT AND THE SELLER DOCUMENTS, THE SALE OF THE PROPERTY AND OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SELLER DOES HEREBY DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY.THE 5.7 RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA. ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH DEPARTMENT.