Exhibit 10.2
HOTEL PURCHASE AGREEMENT
BY AND BETWEEN
HWB 2507 KALAKAUA, LLC
AND
GAYLORD ENTERTAINMENT CO.
DATED AS OF:
APRIL 6, 2005
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HOTEL PURCHASE AGREEMENT
_________________
This HOTEL PURCHASE AGREEMENT (this "AGREEMENT") is made as of
April
6, 2005 between HWB 2507 KALAKAUA, LLC, a
Delaware limited liability company
("SELLER") and GAYLORD ENTERTAINMENT CO. a
Delaware corporation ("BUYER").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and adequacy
of
which are hereby acknowledged, Seller and
Buyer agree as follows:
1. DEFINITIONS. For purposes of this
Agreement, the following terms shall have
the meanings given to them below.
"ALTA SURVEY" means the survey of the Land and Improvements
described in the
Title Report, as that survey may be updated pursuant to
Section
10.2(e).
"ASSIGNMENT AND ASSUMPTION" shall have the meaning given such
term
in Section 8.3(b).
"ASSIGNMENT OF LEASE" shall have the meaning given such term in
Section 8.3(a).
"ASSUMED LIABILITIES" shall have the meaning given such term in
Section 3.3(a).
"BOOKING" means a contract or reservation for the use of guest
rooms, banquet
facilities or meeting rooms in the Hotel other than single
or group
reservations of less than fifty (50) rooms on any single night.
"BUYER'S CONDITIONS" shall have the meaning given such term in
Section 10.2.
"BUYER'S RELEASE DATE" means the date upon which Buyer's
Specific
Contingency
(hereinafter defined) is extinguished, determined at the sole
discretion of
Buyer.
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"BUYER'S
SPECIFIC CONTINGENCY" is approval of purchase by Buyer's
Board of
Directors at a meeting currently scheduled on or about May 5,
2005.
"CLOSING" means the completion of the exchanges set forth in
Section 8.
"CLOSING DATE"
means the date on which Closing occurs.
"CLOSING STATEMENT" means the closing statement required
pursuant
to Section 9.3.
"CONSUMABLES" means all food and beverages in closed boxes;
engineering,
maintenance and housekeeping supplies, including soap and
cleaning
materials, fuel, and materials in closed boxes; stationery and
printing items
and supplies in closed boxes; and other supplies of all
kinds in closed
boxes, all of which are unused or held in reserve storage
for future use
in connection with the maintenance and operation of the
Hotel. The term
"Consumables" does not include, however, Operating
Equipment,
Fixtures and Tangible Personal Property or items of personal
property owned
by guests or employees or other persons furnishing food or
services to the
Hotel.
"CUTOFF TIME" means 12:01 a.m. on the Closing Date, or as may
be
agreed as to a specific category of
adjustment.
"DEPOSIT" means the deposit made by Buyer pursuant to Section
3.1
as such deposit
may be increased pursuant to Section 8.2.
"EMPLOYMENT AGREEMENTS" means all agreements affecting the
Hotel
or the Hotel
Employees, including pension, profit sharing, employee benefit
and similar
plans, if any, and all written employment and consulting
contracts with
regard to any Hotel Employee.
"ESCROW AGENT" means the Title Company hereinafter defined.
"EXCLUDED PERMITS" means those Permits which, under applicable
law, are
nontransferable and such other Permits to be designated as
Excluded Permits
on Schedule 4.3C.
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"FINANCIAL STATEMENTS" mean the balance sheet and profit and
loss
statements for
the Hotel as of February 28, 2005, together with supporting
documentation,
all of which are included in the Offering Schedules.
"FIRPTA" shall mean the federal law known as the Foreign
Investment in Real Property Tax Act.
"FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture,
furnishings, fittings, equipment, machinery, apparatus,
appliances and
other articles of personal property now located on the Land
or in the Hotel
as of the date of this Agreement and used or usable in
connection with
any present or future occupation or operation of all or any
part of the
Hotel. The term "Fixtures and Tangible Personal Property" does
not include (i)
Consumables, (ii) Operating Equipment, (iii) equipment
leased by Seller
and the interest of Seller in any equipment provided to
the Hotel for
use pursuant to Hotel Contracts but not owned or leased by
Seller, or (iv)
property owned or leased by Tenants and guests, employees
or other persons
furnishing goods or services to the Hotel.
"GOVERNMENTAL AUTHORITY" means any governmental or
quasi-governmental agency, body or
entity.
"GROUND LEASE" means the lease described in EXHIBIT A.
"GUEST LEDGER RECEIVABLES" means amounts, including, without
limitation, room
charges, accrued to the accounts of guests occupying rooms
in the Hotel as
of the Cutoff Time.
"HARPTA" shall mean the Hawaii Real Property Tax Act.
"HAZARDOUS DISCHARGE" means any event involving the use,
deposit,
disposal, spill,
release or discharge of any Hazardous Material on, within
or under the
Property.
"HAZARDOUS MATERIALS" means and includes any and all
radioactive
materials, radon
and asbestos, organic compounds known as polychlorinated
biphenyls,
chemicals known to cause cancer or reproductive toxicity,
pollutants,
contaminants, hazardous wastes, toxic substances, toxic
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pollutants,
petroleum substances or petroleum products, pesticides, and any
and all other
substances or materials defined as, or included in the
definition of
"hazardous substances" "hazardous wastes" "hazardous
materials"
"toxic substances" or "toxic pollutants" under, or for the
purposes of, any
Hazardous Materials Law.
"HAZARDOUS MATERIALS CLAIM" means and includes (i) any and all
enforcement,
clean-up, removal, mitigation or other governmental or
regulatory
actions instituted or, to Seller's knowledge, contemplated or
threatened, in
respect of the Property pursuant to any Hazardous Materials
Law, and (ii)
any and all claims made or, to Seller's knowledge,
contemplated or
threatened, by any third party seeking damages,
contribution,
cost recovery, compensation, injunctive relief, specific
performance, or
other relief resulting from any actual or alleged Hazardous
Discharge or
from the existence or alleged existence of any Hazardous
Material on,
within or under the Property.
"HAZARDOUS MATERIALS LAWS" means and includes all federal,
state
or local laws,
statutes, ordinances, rules, regulations and other
requirements of
any Governmental Authority, now or hereafter in effect,
relating to
environmental conditions, industrial hygiene or Hazardous
Materials on,
within, under or about the Property, including without
limitation, the
Federal Water Pollution Control Act, 33 U.S.C. Section
1251, et seq.,
the Comprehensive Environmental Response, Compensation and
Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the
Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq.
the Hazardous Materials Transportation Act, 49 U.S.C.
Section 1801, et
M., the Clean Water Act, 33 U.S.C. Section 1251, et seq.,
the Clean Air
Act, 42 U.S.C. Section 7401 et seq., the Toxic Substances
Control Act, 15
U.S.C. Sections 2601 through 2629, the Safe Drinking Water
Act, 42 U.S.C
Sections 300f through 300j, the Occupational Safety and
Health Act, 29
U.S.C. Section 651, et seq., the Oil Pollution Act, 33
U.S.C. Section
2701, et seq., the Emergency Planning and Community
Right-to-Know
Act, 42 U.S.C. Section 11001, et seq., the National
Environmental
Policy Act, 42 U.S.C. Section-4321, et seq., the Federal
Insecticide,
Fungicide and Rodenticide Act, 15 U.S.C. Section 136, et seq.,
the Medical
Waste Tracking Act, 42 U.S.C. Section 6992, and Hawaii laws
regarding
Management and Disposal of Infectious Waste, Hawaii Revised
Statutes Section
321-21, Solid Waste, Hawaii Revised Statutes Chapter 340E,
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the provisions
of Chapter 128D, Section 328-21, Chapter 340A, Chapter 340E,
and Chapters
342B through P of the Hawaii Revised Statutes, as amended, or
any judicial or
administrative interpretation of such laws, rules or
regulations, and
any similar federal, state or local law, statute,
ordinance, rule,
regulation or requirement, now or hereafter adopted
published and/or
promulgated, and any amendments thereto.
"HOTEL" means the property currently known as the Aston Waikiki
Beach Hotel, located in Waikiki, Honolulu,
Hawaii.
"HOTEL CONTRACTS" means all written contracts or agreements,
such
as franchise,
maintenance, service, or utility contracts which relate to
the ownership,
maintenance, construction or repair and/or operation of the
Land and
Improvement, which have a term beyond May 31, 2006 and which
are
not cancelable
on 90 days' or shorter notice, except Bookings and Tenant
Leases.
"HOTEL EMPLOYEES" means all employees of Seller and/or its
managing agent
(but not employees of Tenants or any of their affiliates)
who work at the
Hotel as of the date of the Agreement.
"IMPROVEMENTS" means the buildings, structures (surface and
subsurface) and
other improvements (including fixtures other than those
owned by Tenants
that constitute real property) located on the Land.
"INFORMATION" shall have the meaning given such term in Section
5.4.
"INSPECTION PERIOD" shall be the period in time commencing one
(1)
business day
following the execution of this Hotel Purchase Agreement and
ending on April
19, 2005.
"INSURED CLAIMS" shall have the meaning given such term in
Section
4.3(b).
"LAND" means (a) the leasehold interest in the land underlying
a
portion of the
Hotel owned of record or beneficially owned by Seller under
the Ground
Lease, and (b) the fee interest in the balance of the Hotel, as
both are more
particularly described in EXHIBIT A.
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"LIQUOR LICENSE" means the Permit, if any, issued to Seller by
the
Alcoholic Beverage Commission of the State
of Hawaii.
"LITIGATION" means action, suit, administration proceeding,
investigation,
condemnation or governmental enforcement proceeding relating
to Seller, the
Property or the operation of the Hotel.
"MISCELLANEOUS HOTEL ASSETS" means all contract rights, leases,
concessions,
trademarks, servicemarks, logos, names of hotel restaurants
and other food
and beverage outlets, technology and technical information,
copyrights,
warranties, plans, drawings and other items of intangible
personal
property relating to the ownership or operation of the Hotel
and
owned by Seller,
excluding, however, (i) receivables, other than Guest
Ledger
Receivables, (ii) Hotel Contracts, (iii) Tenant Leases, (iv)
Permits, (v)
cash or other funds, whether in petty cash or house banks, or
on deposit in
bank accounts or in transit for deposit, (vi) refunds,
rebates or other
claims, or any interest thereon, for periods or events
occurring prior
to the Cutoff Time, (vii) utility and similar deposits,
(viii) insurance
or other prepaid items or (ix) books and records, except
to the extent
that Seller receives a credit on the Closing Statement for
any such
item.
"OFFERING SCHEDULES" mean each Schedule attached to this
Agreement
and each
supplemental or amended schedule provided to Buyer during its
review of the
Hotel's operations prior to or on the Closing Date.
"OUTSIDE ACCOUNTANTS" shall have the meaning given such term in
Section 9.3.
"OPERATING EQUIPMENT" means all china, glassware, linens and
silverware used
or held in reserve storage for future use in connection
with the
operation of the Hotel, which are on hand on the date hereof,
subject to such
depletion and restocking as shall be made in the normal
course of
business.
"PERMITS" means all licenses (including the Liquor License) and
permits granted
by a Governmental Authority and held by Seller and used in
or relating to
the ownership, occupancy or operation of the Hotel or any
part thereof not
subject to a Tenant Lease.
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"PERMITTED EXCEPTIONS" means liens, encumbrances and other
matters
to which the
title to the Real Property is subject and which are described
or listed in the
Title Report.
"PERSONAL PROPERTY" means all Property other than Real
Property.
"PROPERTY" means (i) the Real Property, (ii) the Fixtures and
Tangible
Personal Property, (iii) the Operating Equipment, (iv) the
Consumables, (v)
the transferable right, title and interest, if any, of
Seller in and to
Hotel Contracts and the Tenant Leases, (vi) the Permits
(other than
Excluded Permits), (vii) the Bookings, (viii) the Transferable
Insurance
Policies and (ix) the Miscellaneous Hotel Assets.
"PURCHASE PRICE" shall mean One Hundred Seven Million Dollars
($107,000,000)
allocated between the parcels as set forth in Section 2..3.
"REAL PROPERTY" means the Land and the Improvements.
"RETAINED LIABILITIES" shall have the meaning given such term
in
Section 3.3(b).
"SCHEDULED CLOSING DATE" means the first business day which is
ten
(10) days after
Buyer's Release Date, or such a later date as may be
determined
pursuant to Section 8.2.
"SELLER'S ACCOUNTANTS" shall have the meaning given such term
in
Section 9.3.
"SELLER'S CONDITIONS" shall have the meaning given such term in
Section 10.1.
"SELLER'S KNOWLEDGE," "KNOWN TO SELLER" and other like phrases
shall mean the
current actual knowledge of Zalman Jacobs, vice president of
Seller.
"TENANT LEASES" means the interest of Seller in and to all
leases,
subleases,
licenses and other occupancy agreements, whether or not of
record, which
provide for the use or occupancy of space or facilities on or
relating to the
Real Property and which are in force as of the date hereof.
This term shall
not include agreements providing for the occupancy by
guests of Hotel
rooms or for the occupancy or use of the reception or
meeting
facilities of the Hotel, which are Bookings.
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"TENANT" means any person or entity entitled to use or occupy
any
portion of the Real Property under a Tenant
Lease.
"TITLE COMPANY" means First American Title Insurance Company.
"TITLE POLICY" shall have the meaning given such term in
Section
9.1.
"TITLE REPORT" means the report prepared by the Title Company
describing the
title to the Land and the liens, encumbrances and other
matters relating
to the Land, which report and related documents are
included in the
Offering Schedules.
"TRANSFERABLE INSURANCE POLICIES" means insurance policies, if
any, which are
transferable relating to the Property or operation of the
Hotel, except
for property insurance and casualty insurance policies.
2. AGREEMENTS.
2.1. SALE AND PURCHASE. Seller agrees to sell to Buyer,
and Buyer agrees to
purchase from
Seller, the Property for the Purchase Price, on the terms and
subject to the
conditions of this Agreement.
3. PURCHASE PRICE. The PURCHASE PRICE for the
Property shall be
A. Ninety-Six Million Three Hundred Thousand Dollars
($96,300,000)
allocated to the leasehold parcel
B. Ten Million Seven Hundred Thousand Dollars ($10,700,000)
allocated
to the fee parcel.
3.1
DEPOSIT AND PAYMENT OF PURCHASE PRICE.
a) Upon execution of this Agreement, Buyer shall deposit the sum of
Two
Million Dollars ($2,000,000) ("DEPOSIT") in
an interest bearing account
maintained by Escrow Agent, and which
Deposit shall be held subject to the
condition that, if Buyer elects to
terminate this contract prior to that day
which is the expiration of the Inspection
Period, the Deposit and any accrued
interest shall be paid to Seller.
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b) Upon the expiration of the Inspection Period, if Buyer has
not
elected to terminate this contract, Buyer
shall increase the Deposit by the
additional amount deposit of Three Million
Dollars ($3,000,000) in the interest
bearing account maintained by Escrow Agent.
Such increased Deposit shall be held
subject to the condition that, if Buyer
elects to terminate this contract prior
to that day which is the Buyer's Release
Date, the total Deposit to the extent
of Three Million Dollars ( $3,000,000.00 )
and any accrued interest allocable
thereto shall be paid to Seller and the
balance of the Deposit of Two Million
Dollars ($2,000,000) and any accrued
interest allocable thereto shall be paid to
Buyer.
c) From and after the Buyer's Release Date, the total Deposit and
all
interest allocable thereto shall be payable
to Seller.
d) If a Closing occurs, the Deposit will be credited to Buyer on
the
Closing Statement and paid to Seller. Any
accrued interest shall be paid to
Seller with the Deposit.
e) Buyer shall pay the balance of the Purchase Price in the amount
of
One Hundred and Two Million ($102,000,000)
in the form of immediately available
funds at the Closing, plus or minus the
adjustments and prorations called for
herein.
3.2
ALLOCATION OF PURCHASE PRICE.
a) The allocation between parcels as set forth in regard to the
Purchase Price shall be binding on the
parties. Seller shall determine the
allocation of Purchase Price among the
assets in each parcel in the first
instance and advise Buyer of the allocation
it proposes, provided that such
allocation shall be in accordance with
Internal Revenue Code Section 1060.
b) At the request of Buyer, Seller shall reasonably consider a
different allocation among the assets in
each parcel (but not between the
parcels), provided however that any
increased tax or transfer cost to Seller
resulting from such allocation shall be
indemnified to Seller by Buyer to the
extent that the Buyer's allocation is
used.
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c) Buyer and Seller shall execute such evidence of the allocation
as
may be deemed reasonably advisable to
document its terms in compliance with the
requirements of the Internal Revenue
Service.
3.3 ASSUMPTION
OF LIABILITIES; RETAINED LIABILITIES.
a) Buyer shall assume at Closing and pay the following
obligations
("ASSUMED LIABILITIES") arising from and
after Closing: (i) Seller's obligations
and liabilities with respect to the
Property or operation of the Hotel
(including obligations for commissions and
similar charges in regard to
Bookings) which are disclosed to Buyer in
the Offering Schedules; and (ii) any
liabilities or obligations relating to the
Property or operation of the Hotel
arising from acts, omissions, occurrences
or matters that take place from and
after the Cutoff Time.
b) Buyer shall have no liability or obligation for the
following
("RETAINED LIABILITIES"): (i) federal,
state and local income, franchise, sales,
payroll or other taxes (other than real
estate taxes, water and sewer charges,
vault charges and assessments, which shall
be prorated as of the Cutoff Time) of
Seller or for which Seller is liable,
including (i) any interest and/or
penalties thereon; (ii) any liability the
existence of which would constitute a
breach of any of Seller's representations
or warranties contained in Section 3;
and (iii) any liability or obligation of
Seller related to the Litigation
described in Schedule 4.3B or if not on
Schedule 4.3B which arises from acts,
omissions, or occurrences that take place
prior to the Cutoff Time.
4. REPRESENTATIONS AND WARRANTIES OF
SELLER. As an
inducement to Buyer to
enter into this
Agreement and to consummate the transactions contemplated
herein, Seller
represents and warrants to Buyer as follows:
4.1 ORGANIZATION OF SELLER. Seller is duly a organized Delaware
limited
liability company qualified to hold
property and conduct business in Hawaii.
4.2 AUTHORITY. Seller has taken all actions of members required
to
authorize this Agreement and the
transaction contemplated here.
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4.3 LIST OF PROPERTIES, HOTEL CONTRACTS AND PERSONNEL DATA. The
schedules described in the following
paragraphs (a) through (h) list all items,
if any, within the term or description of
the corresponding paragraph and no
other items within such term or description
exist. True and complete copies of
the documents referred to in paragraphs
(a), (c), (d), (e), (f), (g), and (h)
are included in the Offering Schedules or
have been furnished to or made
available to Buyer:
a) TENANT LEASES. The Tenant Leases ("SCHEDULE 4.3A").
b) LITIGATION. A brief description of pending Litigation, other
than
matters with respect to which Seller is or
believes itself to be fully insured
against the total claim under comprehensive
liability policies of insurance
("INSURED CLAIMS") and matters whose
resolution is a condition to the Closing.
The description shall specify the damage or
relief sought, the name of counsel
for Seller in charge of such matter and the
current status of such action
("SCHEDULE 4.3B").
c) PERMITS. The Permits ("SCHEDULE 4.3C").
d) HOTEL CONTRACTS. The Hotel Contracts ("SCHEDULE 4.3D").
e) BOOKINGS. Bookings related to the Hotel which pertain to any
period
after the Closing Date ("SCHEDULE
4.3E").
f) HOTEL EMPLOYEES. The Hotel Employees ("SCHEDULE 4.3F").
g) INSURANCE. Transferable Insurance Policies ("SCHEDULE
4.3G").
h) EMPLOYMENT AGREEMENTS. Employment Agreements ("SCHEDULE
4.3H").
4.4 STATUS OF TITLE TO PROPERTY. To Seller's knowledge, the
Ground
Lease at Closing, as then amended to
include the Sixth Amendment of Lease, will
be in full force and effect with neither
Seller nor the lessor under the Ground
Lease in default thereunder, and no event
having occurred which, merely by
notice or the passage of time or both,
would constitute a default under the
Ground Lease.
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4.5 HOTEL CONTRACT. Except as described in Schedule 4.3D, Seller
has
received no written notice of any default
with respect to any Hotel Contract and
to Seller's knowledge, all the Hotel
Contracts are in full force and effect,
neither Seller nor the other parties
thereto are in default thereunder, and no
event has occurred which, merely by notice
or the passage of time or both, would
constitute such a default by Seller or such
other parties to such Hotel
Contracts. Except as noted on Schedule
4.3D, all of the Hotel Contracts may be
terminated on no more than ninety (90)
days' notice without termination penalty
or other cost.
4.6 PERMITS. To Seller's knowledge, the Permits are in full force
and
effect except as set forth in the Offering
Schedules, all the requirements and
conditions of the Permits have been fully
complied with, and no event has
occurred which, merely by notice or the
passage of time or both, would render
Seller or operation of the Hotel not in
compliance with such requirements and
conditions. The Permits constitute all of
the material consents, authorizations
or approvals required in connection with
the ownership, lease, and operation of
the Property as it is presently
operated.
4.7 LITIGATION. Except as described in SCHEDULE 4.3B and
Insured
Claims, to Seller's knowledge there is no
pending Litigation which, if adversely
determined, might (i) restrain the
consummation of any of the transactions
herein described, (ii) have a material
adverse effect on the Property or any
significant part thereof or operation of
the Hotel following the Closing or
(iii) result in a lien or encumbrance on
all or part of the Property.
4.8 TENANT LEASES. Except as described in SCHEDULE 4.3A, to the
knowledge of Seller, the Tenant Leases are
in full force and effect, all rent
due thereunder has been paid in full, no
rent thereunder has been prepaid, and
neither Seller nor the Tenants are in
default thereunder, and no event has
occurred which, merely by notice or the
passage of time or both, would
constitute such a default by Seller or the
Tenants.
4.9 TAXES. To the knowledge of Seller, all business, occupation,
sales,
use and other similar taxes imposed with
respect to the Hotel, or the operation
thereof, which are due and payable by
Seller have been paid in full or are
current and Seller has not received any
written notice that any such tax is
overdue or has not been paid.
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4.10 SUFFICIENCY OF INVENTORIES. To Seller's knowledge, the
quantities
of Fixtures and Tangible Personal Property,
Consumables and Operating Equipment
in the Hotel, including provisions for
reserve, are sufficient for the operation
of the Hotel in accordance with the
standard of operation heretofore maintained
by Seller.
4.11 HAZARDOUS MATERIALS. To Seller's knowledge, the Land and
the
Improvements are not subject to (i) any
federal, state, or local investigation,
(ii) any Litigation alleging the violation
of or liability under any Hazardous
Materials Law, (iii) any outstanding
written order or agreement with any
Governmental Authority or private party
relating to any Hazardous Materials Laws
or Hazardous Materials Claims and (iv) any
pending or, to the knowledge of
Seller, threatened Claims with respect to
any Hazardous Materials against or
affecting Seller or the Property or the
Hotel or any Hazardous Materials Claims.
4.12 FOREIGN PERSON.
Seller is not a foreign person for purposes of
the withholding provisions of Section 1445
of the Internal Revenue Code of 1986.
4.13 FINANCIAL STATEMENTS. THE FINANCIAL STATEMENTS ARE TRUE
AND
CORRECT.
4.14 EMPLOYMENT CONTRACT. There are no union contracts, labor
agreements or Employee Benefit Plans as
defined in Section 3(3) of the Employee
Retirement Income and Security Act of 1974,
as amended from time to time, or
written employment contracts relating to
the Hotel Employees other than the
Employment Agreements. Except as described
in SCHEDULE 4.3H, Seller has not
received or given any written notice of
default under the terms of any
Employment Agreements.
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5. REPRESENTATIONS AND
WARRANTIES OF BUYER. As an inducement to Seller to
enter into this
Agreement and to consummate the transactions contemplated
herein, Buyer
hereby represents and warrants to Seller:
5.1 ORGANIZATION OF BUYER. Buyer is duly a organized Delaware
company
qualified to hold property and conduct
business in Hawaii.
5.2 AUTHORITY. By the Closing Date, Buyer will have obtained
all
necessary approvals for this transaction,
including the approval of its Board of
Directors.
5.3 DISCLOSURES. No representation or warranty by Buyer herein
contains
any untrue statement of a material fact or
omits to state a material fact
necessary to make the statements contained
herein not misleading.
5.4 AS-IS PURCHASE.
(a) Buyer acknowledges, represents and
warrants that, except as expressly
provided in
Section 4 above, (i) any information ("INFORMATION") supplied
or made
available by Seller, whether written or oral, or in the form of
maps, surveys,
plats, soil reports, engineering studies, environmental
studies,
inspection reports, plans, specifications, or any other
information
whatsoever, without exception, pertaining to the Property, any
and all records, rent
rolls, and other documents pertaining to the use and
occupancy of the
Property, income thereof, the cost and expenses of
maintenance
thereof, and any and all other matters concerning the
condition,
suitability, integrity, marketability, compliance with law, or
other attributes
or aspects of the Property, or a part thereof, is
furnished to
Buyer solely as a courtesy; (ii) THE INFORMATION IS PROVIDED,
AND THE PROPERTY
IS PURCHASED, ON AN AS-IS-WHERE-IS BASIS AND SELLER MAKES
NO
REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW
OR
OTHERWISE,
INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF FUTURE
PERFORMANCE,
CONDITION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE AS TO
THE INFORMATION OR THE PROPERTY; and (iii) no
representations,
whether written or oral, have been made by Seller, or its
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agents or
employees in order to induce Buyer to enter into this
Agreement.
Without limiting
the generality of the foregoing, Buyer acknowledges,
warrants and
represents to Seller that neither Seller nor its agents or
employees have
made any representations or statements, whether written or
oral, to Buyer
concerning the investment potential, operation or resale of
the Property at
any future date, at a profit or otherwise, nor has Seller
or its agents or
employees rendered any advice or expressed any opinion to
Buyer regarding
any tax consequences of ownership of the Property.
(b) Buyer acknowledges, represents and
warrants that as of the Closing Date,
Buyer will be
familiar with the Property and will have made such
independent
investigations as Buyer deems necessary or appropriate
concerning the
Property. If Buyer elects to proceed with the purchase of
the Property
after the Inspection Period, any objections which Buyer may
have with
respect to the Property as of that date shall be waived by
Buyer.
Except as
expressly provided in Section 4 above, Seller makes no
representations
or warranties and specifically disclaims any
representation,
warranty, or guaranty, oral or written, past, present or
future with
respect to the physical condition or any other aspect of the
Property,
including, without limitation, the structural integrity of the
Improvements,
the manner, construction, condition, and state of repair or
lack of repair
of any of the Improvements, the conformity of the
Improvements to any plans or
specifications for the Property, including,
but not limited
to, any plans and specifications that may have been or
which may be
provided to Buyer, the conformity of the Property to past,
current or
future applicable zoning or building code requirements or the
compliance with
any other laws, rules, ordinances, or regulations of any
government or
other body, the financial earning capacity or history or
expense history
of the operation of the Property, the nature and extent of
any
right-of-way, lease, possession, lien encumbrance, license,
reservation,
condition, or otherwise, the existence of soil instability,
past soil
repairs, soil additions or conditions of soil fill,
susceptibility
to landslides, sufficiency of undershoring, sufficiency of
drainage,
whether the Property is located wholly or partially in a flood
plain or a flood
hazard boundary or similar area, the existence or
non-existence of
hazardous waste or other toxic materials of any kind
(including,
without limitation, asbestos) or any other matter affecting the
stability or
integrity of the Land and/or the Improvements.
15
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(c) Seller shall not be responsible
for any negligent misrepresentation or
failure to
investigate the Property on the part of Seller, any real estate
broker or sales
agent, or any other agent or employee of Seller or any
third party.
(d) Except as expressly provided in
Section 4, as part of Buyer's agreement to
purchase and
accept the Property AS-IS-WHERE-IS, and not as a limitation on
such agreement,
BUYER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES AND
RELEASES ANY AND
ALL ACTUAL OR POTENTIAL RIGHTS BUYER MIGHT HAVE REGARDING
ANY FORM OF
WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE, RELATING TO
THE PROPERTY AND
THE INFORMATION. SUCH WAIVER AND RELEASE IS ABSOLUTE,
UNCONDITIONAL,
IRREVOCABLE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. SUCH
WAIVER AND
RELEASE INCLUDES, BUT IS NOT LIMITED TO, A WAIVER AND RELEASE
OF
EXPRESS
WARRANTIES, IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A
PARTICULAR USE,
WARRANTIES OF MERCHANTABILITY, WARRANTIES OF HABITABILITY,
STRICT LIABILITY
RIGHTS AND CLAIMS OF EVERY KIND AND TYPE, IN
