renders any representation or
warranty of Seller materially inaccurate, then Buyer shall either: (i) proceed
with Closing, in which case such non-compliance shall be deemed waived; or (ii)
terminate this Agreement by written notice to Seller and Escrow Agent, in which
case: (A) the Deposit shall be returned to Buyer; (B) this Agreement shall then
become null and void and of no further force or effect, except for any Surviving
Obligations; and (C) neither Seller nor Buyer shall have any further liability
or obligation to the other under this Agreement, except for the Surviving
Obligations. Notwithstanding the foregoing, if such inaccuracy is due to a
willful or intentional act or failure to act by Seller or a breach by Seller of
its covenants set forth in this Agreement, Buyer shall have the default remedies
set forth in Section 11.1 below.
5.1.17
AS-IS, WHERE-IS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND
IN THE DOCUMENTS EXECUTED AT CLOSING, SELLER HAS NOT MADE AND DOES NOT HEREBY
MAKE ANY REPRESENTATIONS, WARRANTIES OR OTHER STATEMENTS AS TO THE CONDITION OF
THE PROPERTY OR THE SELLER MATERIALS AND BUYER ACKNOWLEDGES THAT AT CLOSING
BUYER IS PURCHASING THE PROPERTY ON AN "AS IS, WHERE IS" BASIS AND WITHOUT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR
IMPLIED, FROM SELLER, ITS AGENTS OR BROKERS AS TO ANY MATTERS CONCERNING THE
PROPERTY OR THE SELLER MATERIALS EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT
OR IN THE DOCUMENTS EXECUTED AT CLOSING. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND IN THE DOCUMENTS EXECUTED AT CLOSING, NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE OR ARE MADE AND NO RESPONSIBILITY HAS BEEN OR IS
ASSUMED BY SELLER OR BY ANY PARTNER, OFFICER, PERSON, FIRM, AGENT OR
REPRESENTATIVE ACTING OR PURPORTING TO ACT ON BEHALF OF SELLER AS TO THE
CONDITION OR REPAIR OF THE PROPERTY OR THE VALUE,
8
EXPENSE OF OPERATION, OR INCOME POTENTIAL THEREOF OR AS TO ANY OTHER FACT OR
CONDITION THAT HAS OR MIGHT AFFECT THE PROPERTY OR THE CONDITION, REPAIR, VALUE,
EXPENSE OF OPERATION OR INCOME POTENTIAL OF THE PROPERTY OR ANY PORTION THEREOF.
THE PARTIES AGREE THAT ALL UNDERSTANDINGS AND AGREEMENTS HERETOFORE MADE BETWEEN
THEM OR THEIR RESPECTIVE AGENTS OR REPRESENTATIVES ARE MERGED IN THIS AGREEMENT
AND THE SCHEDULES AND EXHIBITS HERETO ANNEXED, WHICH ALONE FULLY AND COMPLETELY
EXPRESS THEIR AGREEMENT, AND THAT THIS AGREEMENT HAS BEEN ENTERED INTO AFTER
FULL INVESTIGATION, OR WITH THE PARTIES SATISFIED WITH THE OPPORTUNITY AFFORDED
FOR INVESTIGATION, NEITHER PARTY RELYING UPON ANY STATEMENT OR REPRESENTATION BY
THE OTHER UNLESS SUCH STATEMENT OR REPRESENTATION IS SPECIFICALLY EMBODIED IN
THIS AGREEMENT OR THE EXHIBITS ANNEXED HERETO. BUYER ACKNOWLEDGES THAT SELLER
HAS REQUESTED BUYER TO INSPECT FULLY THE PROPERTY, REVIEW THE SELLER MATERIALS
AND INVESTIGATE ALL MATTERS RELEVANT THERETO AND, WITH RESPECT TO THE CONDITION
OF THE PROPERTY, TO RELY SOLELY UPON THE RESULTS OF BUYER'S OWN INSPECTIONS OR
OTHER INFORMATION OBTAINED OR OTHERWISE AVAILABLE TO BUYER, RATHER THAN ANY
INFORMATION THAT MAY