Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall: (a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations; (b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith; (c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons; (d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property; (e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and (f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Dean Witter Realty Income Partnership Iii Lp), Purchase and Sale Agreement (Witter Dean Realty Income Partnership Iv L P)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports prepared by third parties relating to the Investigations which the Purchaser shall obtain with respect to the PropertyProperty promptly after the Purchaser's receipt of same;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 34, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this AgreementAgreement or the first entry on the Property; and
(fg) indemnify not, at any time, contact or communicate with any tenant of the Seller and Property for any reason whatsoever without the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any prior written approval of the Seller's Affiliates and arising out of , which communications, whether by telephone, in writing or in connection with (i) person, Seller or its designee shall have the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations right to be present at or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closingotherwise participate in.
Appears in 2 contracts
Samples: Not Specified (Witter Dean Realty Income Partnership I Lp), Not Specified (Witter Dean Realty Income Partnership Ii Lp)
Access to the Property. During (a) Provided Purchaser has delivered evidence of Purchaser’s Liability Insurance to Seller and Seller has approved the Due Diligence Periodsame (which approval shall not be unreasonably withheld, the conditioned or delayed), Seller will allow Purchaser and the its employees, agents, prospective lenders, attorneys, contractors and representatives (collectively, “Purchaser's Representatives shall have the right ’s Representatives”) to enter upon the Property prior to the Closing Date at reasonable times during normal business hours upon two (2) Business Days’ prior notice (but subject to the rights of Tenants) and without material interruption of the Seller’s management of the Property or any Tenant’s use of its premises or the Property for the sole purpose of inspecting the Property and making updating surveys, soil boringsinspections, engineering tests studies, environmental assessments and any other investigationstests, inspections examinations or studies which Purchaser may reasonably deem necessary and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon inspect the Property and all Investigations books, records and accounts relating to the operation thereof (collectively, “Investigations”), at reasonable times upon reasonable notice (which for all events shall be at the sole risk and expense least two (2) Business Days’ prior notice). Purchaser shall be solely responsible for all of the Purchaser costs and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair expenses of any damage to the Property resulting from any Investigations and shall conduct such Investigations in good faith and replacewith due diligence. Notwithstanding the foregoing, refill and regrade Seller’s prior written consent (which shall not be unreasonably withheld) shall be required for any holes made in, Investigations which involve invasive or excavations of, any portion destructive testing of the Property used for such Investigations so that (or any portion thereof and including, without limitation, any boring of the Property in connection with an environmental audit or otherwise) or any alteration of the Property (or any portion thereof). In the event Seller does provide its consent to any such invasive testing or alteration, Purchaser shall promptly restore the Property to its condition immediately prior to, as applicable, such test or alteration. Purchaser shall provide Seller with evidence that applicable contractors have named Seller as an additional insured to their respective insurance policies, which insurance policies must be approved by Seller in the same condition that existed prior to such Investigations;
its reasonable discretion. Purchaser shall (bi) fully comply with all Laws laws, rules and regulations applicable to Property and/or the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) not interfere with the use, occupancy, management, maintenance or operation of the Property (or any Investigations portion thereof) by Seller or other activities conducted thereonthe Tenants (or any of their respective agents, representatives, guests, invitees, contractors, or employees), and (iii) any and permit Seller to have one or more representatives present during all other activities Investigations undertaken by the hereunder. Purchaser and/or the Purchaser's Representatives in connection with the Propertyhereby agrees to indemnify, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates defend and hold harmless the Indemnified Seller and the Seller's Affiliates harmless Persons from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), Losses suffered or incurred by the Seller or any of the Seller's Affiliates such other entities or persons and arising out of or in connection with (i) the Purchaser's ’s and/or the Purchaser's ’s Representatives' ’ entry upon the Property, (ii) any Investigations or and other activities conducted thereon on the Property by the Purchaser or the Purchaser's ’s Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of any and all Investigations and other activities undertaken by Purchaser or Purchaser’s Representatives except to the Investigationsextent caused by such other entities or persons; provided, however, Purchaser shall have no such indemnity, defense or hold harmless obligations with respect to Losses caused by Purchaser’s mere discovery of information respecting the Property. The provisions of this Section 4.1 Purchaser shall survive procure, prior to entry upon the Property, and maintain for at least six (6) months after the Closing or earlier termination of this Agreement commercial general liability insurance covering Purchaser, Seller and the ClosingProperty on an occurrence, as opposed to claims made, basis and providing for a combined single limit for bodily injury and property damage of not less than Five Million and No/100 Dollars ($5,000,000.00) per occurrence issued by companies and in form and substance reasonably satisfactory to Seller (“Purchaser’s Liability Insurance”). All of Purchaser’s Liability Insurance shall be primary and not contributing with any insurance maintained by Seller to the extent of Purchaser’s indemnity contained in this Section 6.03(a). Seller shall be named as an additional insured under all of Purchaser’s Liability Insurance and Seller shall be given written notice at least thirty (30) days prior to cancellation, material amendment or reduction of any such coverage. The indemnity and covenants of Purchaser set forth in this Section 6.03(a) shall survive the Closing or termination of this Agreement.
Appears in 1 contract
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "InvestigationsINVESTIGATIONS"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all physical Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property, if the Purchaser does not close hereunder (but not if such disclosure is prohibited by the terms of any contract with a supplier);
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than One Million Dollars ($1,000,000 1,000,000) per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of One Million Dollars ($1,000,000 1,000,000) per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of Three Million Dollars ($3,000,000), insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3SCHEDULE 4, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten at the earlier of five (105) days after the date of this AgreementAgreement or the first entry on the Property; and
(fg) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, including without limitation, limitation attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's Purchaser and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Witter Dean Realty Income Partnership I Lp)
Access to the Property. During (a) Provided Buyer has delivered evidence of Buyer’s Liability Insurance (as hereinafter defined) to Sellers and Sellers have approved the Due Diligence Periodsame (which approval shall not be unreasonably withheld, conditioned or delayed), Sellers will allow Buyer and its employees, agents, prospective lenders, attorneys, contractors and representatives (collectively, “Buyer Representatives”), prior to the Purchaser and Closing Date at reasonable times during normal business hours upon two (2) Business Days’ prior notice (but subject to the Purchaser's Representatives shall have the right rights of Tenants under their Leases), to enter upon the Property Properties (i) for the sole purpose of inspecting the Property and making performing surveys, soil boringsphysical inspections, engineering tests studies and other investigations, inspections and tests environmental assessments which Buyer may reasonably desire (collectively, "“Investigations"”), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations Buyer shall be at the sole risk and expense solely responsible for all of the Purchaser costs and expenses of any Investigations and shall conduct such Investigations in good faith and with due diligence. Notwithstanding the Purchaser's Representativesforegoing, without Seller’s prior approval, which shall not be unreasonably withheld, conditioned or delayed, Buyer shall not be permitted to conduct any Investigations which involve invasive or destructive testing of the Properties (or any portion thereof and including, without limitation, any boring of the Properties in connection with an environmental audit or otherwise) or any alteration of the Properties (or any portion thereof). The Purchaser shall:
(a) promptly repair any damage In the event Sellers do provide their consent to the Property resulting from any such Investigations and replaceinvasive testing or alteration, refill and regrade any holes made in, or excavations of, any portion of Buyer shall promptly restore the applicable Property used for such Investigations so that the Property shall be in the same to its condition that existed immediately prior to such Investigations;
test or alteration. Buyer shall provide Sellers with evidence that applicable contractors have named Sellers and The Xxxx Xxxxxxx Company (bthe “Manager”) as additional insureds in their respective insurance policies, which insurance policies must be approved by Sellers in their reasonable discretion and maintained through the Closing Date. Buyer shall (x) fully comply with all Laws laws, rules and regulations applicable to Properties and/or the Investigations and all other activities undertaken in connection therewith;
, (cy) take all actions and implement all protections necessary to ensure that all actions taken in connection not interfere with the Investigationsuse, and occupancy, management, maintenance or operation of the equipmentProperties (or any portion thereof) by Sellers, materialsManager, and substances generated, used or brought onto the Property pose no threat to Tenants under the safety or health of persons or the environment, and cause no damage to the Property Leases or other property occupants of the Seller Properties (or other persons;
(d) if the Closing fails to occurany of their respective agents, furnish to the Seller within thirty (30) days of the originally scheduled Closing Daterepresentatives, at no cost guests, invitees, contractors, or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereonemployees), and (iiiz) any and permit Sellers to have a representative present during all other activities Investigations undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Propertyhereunder. With at least two (2) Business Days prior written notice from Buyer, Sellers shall arrange for Buyer to conduct tenant interviews, provided such Tenants are agreeable to such interview, and deliver evidence Sellers shall have the right to have a representative accompany Buyer on such interviews. Buyer may not, however, request any governmental investigations or inspections of such insurance policy the Properties; provided, however, nothing contained herein shall prevent Buyer from meeting with governmental agencies to discuss and confirm the Seller within ten (10) days zoning of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates Properties. Buyer hereby agrees to indemnify, defend and hold the Seller harmless Sellers, Manager and the Seller's Affiliates harmless each other Released Party (as hereafter defined) from and against any and all claimsloss, demandscost, causes of actionexpense, lossesdamage, damages, liabilities, costs claim and expenses liability (including, without limitation, reasonable attorneys' ’ fees and disbursements), suffered or incurred by the Seller Sellers, Manager or any of the Seller's Affiliates other Released Party and arising out of or in connection with (iI) the Purchaser's Buyer and/or the Purchaser's Representatives' Buyer’s representatives entry upon the PropertyProperties, (iiII) any Investigations or and other activities conducted thereon on the Properties by Buyer or Buyer’s representatives (but nothing contained herein shall impose any liability on Buyer solely as a result of Buyer’s mere discovery of a condition of the Purchaser or the Purchaser's RepresentativesProperty, including, but not limited to, environmental conditions), and (iiiIII) any liens or encumbrances filed or recorded against the any Property as a consequence of any and all Investigations and other activities undertaken by Buyer or Buyer’s representatives. Buyer shall procure, prior to entry upon the InvestigationsProperties, and maintain for at least one (1) year after the Effective Date commercial general liability insurance covering Buyer, Sellers, Manager and the Properties for actions taken by Buyer or Buyer’s representatives, contractors, agents or invitees on an occurrence, as opposed to claims made, basis and providing for a combined single limit for bodily injury and property damage of not less than **** ******* *** ****** ******* *************** per occurrence issued by companies and in form and substance reasonably satisfactory to Sellers (“Buyer’s Liability Insurance”), which insurance requirements may be satisfied with a combination of a primary policy and an excess policy, provided the same meet the requirements set forth in this Section 3.7(a). All of Buyer’s General Liability Insurance shall be primary and not contributing with any insurance maintained by Sellers or Manager to the extent of Buyer’s indemnity contained in this Section 3.7. Sellers and Manager shall be named as additional insureds under all of Buyer’s General Liability Insurance and Sellers and Manager shall be given written notice at least thirty (30) days prior to cancellation, material amendment or reduction of any such coverage. The provisions of this Section 4.1 3.7 shall not in any way be deemed to amend the provisions of Article XII. The indemnity set forth in this Section 3.7 shall survive the Closing and/or the termination of this Agreement and until the ClosingSurvival Date set forth in Section 24.9(a) hereof.
(b) Except as otherwise expressly permitted by Section 3.7(a) hereof, Buyer and/or Buyer’s representatives shall not communicate or otherwise interfere with the Tenants or with the normal conduct by Sellers or the Manager of their business at the Properties.
Appears in 1 contract
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Corp)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "InvestigationsINVESTIGATIONS"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent, which consent shall not be unreasonably withheld or delayed. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours or at such other time or times as may be reasonably acceptable to Seller and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not unreasonably interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no undue damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3SCHEDULE 5, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this Agreement; andAgreement or the first entry on the Property;
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, including without limitation, limitation reasonable attorneys' fees and disbursements) (a "Loss"), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's Purchaser and/or the Purchaser's Representatives' entry upon the Property, and (ii) any Investigations investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against Representatives except to the extent such Loss results from a condition existing at the Property as a consequence prior to the time of such investigations or other activities; and
(g) not, at any time, contact or communicate with any tenant of the InvestigationsProperty for any reason whatsoever without having first afforded to Seller an opportunity to contact such tenant in order to notify such tenant that Purchaser wishes to communicate with such tenant and to set up an appointment for same. Seller or its designee shall have the right to be present at or otherwise participate in such meetings. The provisions of this Section 4.1 (other than Section 4.1(g)) shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections inspections, assessments and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the immediately preceding sentence, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property without prior written notice for the sole purpose of (i) making Investigations that are not physically intrusive, or (ii) meeting with the person identified by the Seller in writing as the manager of the Property. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all reasonable actions and implement all reasonable protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if the Closing fails to occurdoes not occur and if requested by the Seller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, written soil test results, written engineering, written asbestos, written environmental and other written studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the PropertyProperty promptly after the Purchaser's receipt of same;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 34, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreementon or prior to the first entry on the Property; and
(fg) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, including without limitation, limitation reasonable attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's Purchaser and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the InvestigationsInvestigations other than any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (x) directly caused by or directly arising out of the Seller's gross negligence or willful misconduct, or (y) resulting from or arising out of Purchaser's discovery of any existing environmental condition or the disclosure thereof in accordance with applicable law. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P)
Access to the Property. During (a) Commencing on the Due Diligence Perioddate Purchaser has delivered to Seller the insurance certificate required pursuant to Section 4.2(d) and then for so long as this Agreement is in effect, the Purchaser and Purchaser’s agents designated in writing to Seller (“Purchaser’s Agents”) shall be entitled to enter upon the Purchaser's Representatives Property during regular business hours upon at least one (1) Business Day prior telephonic notice to conduct inspections of the Property. Seller shall have the right to enter upon have a representative accompany Purchaser on all such inspections. Purchaser shall conduct its inspections so as not to interfere unreasonably with the use of the Property for by Seller, the sole purpose Tenants or with the management of inspecting the Property and making surveysby any property manager of the Property. Notwithstanding anything to the contrary contained herein, soil boringsbut subject at all times to the rights of Tenants under the Leases, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit may interview any borings, drillings or samplings to be done on tenant at the Property without provided Purchaser notifies Seller at least two (2) Business Days in advance of such interview. Seller has the Seller's prior written consent. right to have a representative present at any tenant interview conducted by Purchaser in accordance with the terms of this Agreement.
(b) Any entry upon the Property and all Investigations such inspection shall be at the sole risk and expense cost of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully at its expense comply with all Laws applicable to federal, state and local laws, statutes, rules, regulations, ordinances or policies in conducting any inspection of the Investigations and all other activities undertaken in connection therewith;Property.
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with Neither Purchaser nor Purchaser’s Agents shall undertake any inspection which involves the Investigations, and the equipment, materials, and substances generated, used removal or brought onto disturbance of any physical aspect of the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees environmental testing and disbursements)sampling, suffered other than a typical “Phase I” environmental inspection) or incurred perform any other invasive activities at the Property (“Due Diligence Activity”) without first obtaining Seller’s prior written consent thereto, which consent may be subject to any terms and conditions imposed by the Seller in its sole discretion, and which consent Seller may withhold in its sole discretion. If Purchaser wishes, or Purchaser’s Agents wish, to perform any Due Diligence Activity, they shall first submit to Seller a written description of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Propertyproposed Due Diligence Activity, (ii) any Investigations the proposed dates for the Due Diligence Activity, (iii) a list of Purchaser’s Agents or other activities conducted thereon contractors who will conduct the Due Diligence Activity (it being acknowledged and agreed, for clarity, that the consummation of a Phase II (as hereinafter defined) by EBI Consulting during the Purchaser or the Purchaser's RepresentativesInspection Period shall be deemed pre-approved by Seller for purposes of this Section 4.2(c)), and (iiiiv) such other information as may be reasonably requested by Seller regarding the nature and scope of same. Purchaser shall also provide to Seller evidence of insurance covering any liens Due Diligence Activity by Purchaser, Purchaser’s Agents or encumbrances filed or recorded against contractors on the Property as a consequence of Property. Purchaser shall conduct any Due Diligence Activity only at the Investigations. The provisions of this Section 4.1 shall survive times and by the termination of this Agreement agents and the Closingcontractors specified in Seller’s consent.
Appears in 1 contract
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the PropertyProperty promptly after the Purchaser's receipt of same, and the Seller shall reimburse the Purchaser for the reasonable costs of any such studies and reports which Seller has requested, except those studies and reports which relate to any Purchaser's Termination Notice shall be provided to Seller at no expense in conjunction with the delivery of such Purchaser's Termination Notice;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 34, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this AgreementAgreement or the first entry on the Property; and
(fg) indemnify not, at any time, contact or communicate with any tenant of the Seller and Property for any reason whatsoever without the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any prior written approval of the Seller's Affiliates and arising out of , which communications, whether by telephone, in writing or in connection with (i) person, Seller or its designee shall have the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations right to be present at or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigationsotherwise participate in. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Witter Dean Realty Income Partnership Ii Lp)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than two (2) business days prior written notice before the first entry and not less than twenty-four (24) hours telephonic notice before each subsequent entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent, provided however that the Seller acknowledges that the Purchaser will require core sampling of the concrete slabs in the Buildings. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the PropertyProperty promptly after the Purchaser's receipt of same;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 34, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this Agreement; andAgreement or the first entry on the Property;
(fg) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, including without limitation, limitation attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's Purchaser and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the InvestigationsInvestigations or any other activities conducted thereon by the Purchaser or the Purchaser's Representatives; provided, however, that subject to Section 17.3 hereof, the obligations of Purchasers set forth in this Section 4.1(g) shall not be applicable to matters or conditions which are only discovered by Purchaser or Purchaser's Representatives, but not caused by, Purchaser or Purchaser's Representatives; and
(h) not, at any time, contact or communicate with any tenant of the Property for any reason whatsoever without the prior written approval of the Seller, which communications, whether by telephone, in writing or in person, Seller or its designee shall have the right to be present at or otherwise participate in. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Dean Witter Realty Yield Plus Ii Lp)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than one (1) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and shall not interfere with the activities on or about the Property of the Seller, its tenants and their employees and invitees. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports prepared by third parties relating to the Investigations which the Purchaser shall obtain with respect to the PropertyProperty promptly after the Purchaser's receipt of same;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 34, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this AgreementAgreement or the first entry on the Property; and
(fg) indemnify not, at any time, contact or communicate with any tenant of the Seller and Property for any reason whatsoever without the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any prior written approval of the Seller's Affiliates and arising out of , which communications, whether by telephone, in writing or in connection with (i) person, Seller or its designee shall have the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations right to be present at or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigationsotherwise participate in. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Samples: Not Specified (Witter Dean Realty Income Partnership Iv L P)
Access to the Property. During the Due Diligence Period, the Purchaser and the Purchaser's Representatives shall have had the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests of the Property, including, without limitation, all structural and mechanical systems within the Building (collectively, "Investigations"" which term shall not include Purchaser's internal work product), provided neither (i) the Purchaser nor gave the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's Seller not less than one (1) business days' prior written consentnotice before each entry, and (ii) the first such notice shall include sufficient information to permit the Seller 13 to review the scope of the proposed Investigations. Purchaser did not during the Due Diligence Period and does not now have the right to conduct any subsurface investigations at the Property, any such investigations shall be undertaken by the Seller pursuant to Section 13.3(a) hereof. Any entry upon the Property and all Investigations shall be during the Due Diligence Period were to have been during the Seller's normal business hours and were and remain at the sole risk and expense of the Purchaser and the Purchaser's Representatives, and were not to have disrupted the activities on or about the Property of the Seller, its tenants and their employees and invitees in any substantial manner. The Purchaser shallwas required during the Due Diligence Period and remains obligated to:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition as that which existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) permit the Seller and/or the tenant under the Lease to have a representative present during all Investigations undertaken hereunder;
(d) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(de) if requested by the Closing fails to occurSeller, furnish to the Seller within thirty (30) days of the originally scheduled Closing DateSeller, at no cost or expense to the Seller, copies of any all surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain from third party consultants with respect to the PropertyProperty promptly after the Purchaser's receipt of same, Seller hereby waives any claims, actions or causes of action against Purchaser or any such third party consultant with respect to the accuracy or completeness of any such studies or reports delivered to Seller by Purchaser;
(ef) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 32, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the 14 Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within at the earlier of ten (10) days after the date of this AgreementAgreement or the first entry on the Property; and
(fg) subject to the final sentence of Section 17 hereof, indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, including without limitation, limitation attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's Purchaser and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the InvestigationsInvestigations or any other activities conducted thereon by the Purchaser or the Purchaser's Representatives. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Access to the Property. During the Due Diligence Period, the Purchaser Seller will continue to allow Buyer and the Purchaser's Buyer’s Representatives shall have the right access to enter upon the Property for upon reasonable prior notice and at reasonable times, provided (a) such access does not interfere with the sole purpose construction of inspecting the Shell Building Improvements or operation of the Property; (b) Buyer shall provide Seller not less than twenty-four (24) hours advance notice to Seller of any Buyer’s Representatives intent to visit the Property and making surveys, soil borings, engineering tests any Buyer’s Representative shall coordinate with Seller prior to and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage during each visit to the Property resulting from by any Buyer’s Representatives such Investigations that representatives of Seller may accompany Buyer’s Representatives during each such visit; and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary Buyer’s Representatives shall not be permitted to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property perform any invasive testing or other property physical evaluation of the Seller or other persons;
(d) if the Closing fails Property. Prior to occur, furnish to the Seller within thirty (30) days such time as any of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to Buyer’s Representatives enter the Property;
, Buyer shall (ei) maintain or cause to be maintained, at the Purchaser's expense, obtain a policy of comprehensive general public liability insurance which insures Buyer’s Representatives with a combined single limit liability insurance limits of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily personal injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the names Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insuredsinsured, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, and (ii) provide Seller with a certificate of insurance evidencing that Buyer has obtained the aforementioned policy of insurance. Buyer’s Representatives shall not contact any Investigations governmental official or other activities conducted thereonrepresentative regarding the Property without Seller’s prior written consent thereto, which consent shall not be unreasonably withheld, conditioned or delayed, and, if Seller’s consent to any such governmental contact is obtained by Buyer, Seller shall be entitled to receive at least two (2) days prior notice (which may be oral) of the intended contact and to have a representative present when any Buyer’s Representatives has any such contact with any governmental official or representative; provided, however, that following the date which is twenty (20) days after the issuance of the building permit, the foregoing restriction shall pertain only to matters related to the Shell Building Improvements, the Fit Out Improvements and the construction thereof, and (iii) any and all other activities undertaken by shall not pertain to matters related to Buyer’s use of the Purchaser and/or Property or the Purchaser's Representatives in connection with the Property, and deliver evidence operations of such insurance policy Buyer proposed to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses be located therein (including, without limitation, attorneys' fees and disbursementsmatters such as economic incentives or tax relief that might be available to Buyer), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.
Appears in 1 contract
Access to the Property. During Commencing on the Effective Date hereof and continuing until the expiration of the Due Diligence Period, Seller shall allow Buyer and Buyer’s Representatives access to the Purchaser Property at reasonable times in order to conduct such environmental, soil, engineering or any other studies thereon as Buyer, in its reasonable discretion, shall deem advisable; provided, however: (a) such access shall not interfere with the operation of the Property or Seller’s adjacent properties and shall be subject to the Purchaser's Representatives terms of the Leases; (b) Buyer shall provide at least twenty-four (24) hours’ notice prior to each visit to the Property by any Buyer’s Representatives, and representatives of Seller shall have the right to enter upon accompany Buyer’s Representatives during each such visit; (c) any invasive testing shall require Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and (d) after the Property for expiration of the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Due Diligence Period Buyer’s Representatives shall permit not be permitted to perform any borings, drillings further testing or samplings to be done on other physical evaluation of the Property without the Seller's prior written consentconsent of Seller, which shall not be unreasonably conditioned, withheld or denied. Any entry upon Buyer shall deliver promptly to Seller copies of all Buyer’s Reports. Buyer shall immediately return the Property to the condition existing prior to any tests and all Investigations inspections. Buyer shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any use its best efforts to minimize damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of shall cause the Property used for such Investigations so that to be restored to substantially the Property shall be in the same condition that existed existing immediately prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, entry thereon by Buyer and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
Buyer’s Representatives (d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 obligation shall survive the termination of this Agreement and shall not be subject to any limitation of remedies set forth in this Agreement. Seller acknowledges that Buyer, at its sole expense, will be conducting an audit of property-level financials as specified by Rule 3-14 of Regulation S-X of the ClosingSecurities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and Seller agrees to reasonably cooperate and assist Buyer in obtaining any and all such data and financial information that shall be reasonably available to Seller (including, without limitation, data and information obtainable from Seller’s property manager), and permit Buyer’s auditors reasonable access to such information.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Global Income Trust, Inc.)
Access to the Property. During (a) Subject to the Due Diligence Periodprovisions of Section 23(c) hereof, the Purchaser and its agents, employees, consultants, inspectors, appraisers, engineers and contractors (collectively "Purchaser's Representatives") shall have the right, through the Closing Date, from time to time, upon the advance notice required pursuant to Section 23(c), to enter upon and pass through the Properties during normal business hours to examine and inspect the same.
(b) Each Seller shall make available to Purchaser, at the management office at each Property or at the offices of Charter Oak Group, Ltd. ("Existing Manager"), to the extent in any Seller's (or Existing Manager's) possession: plans and specifications; environmental and engineering reports relating to each Property; copies of all Leases and Contracts; and the books and records relating to the applicable Seller and operation of such Property (but excluding any books and records of such Seller such as, without limitation, any records relating to such Seller's selling or financing negotiations or third-party appraisals or any internal documents relating to the value of such Property).
(c) In conducting the inspection of the Properties and its due diligence review, Purchaser shall at all times comply with all laws and regulations of all applicable governmental authorities, and neither Purchaser nor any of Purchaser's Representatives shall (i) contact or have any discussions with any of Sellers' agents, representatives (except for John McGurk, Scott Peters and James Quigley) or employees (whether ax x Xxxxxxxy ox xx xxx xxxices xx Xxxxxxxx Xanager) or contractors providing services to any Property, unless, in each case, Purchaser obtains the right prior written consent of Sellers, which shall not be unreasonably withheld or delayed, it being agreed that all such contacts or discussions shall, pending any such approval, be directed to enter upon Scott Peters ((703) 905-4411) or John McGurk ((212) 403-3510), (ii) xxxxxxxxx xith the business of axx Xxxxxx (or xxx xx xxx xxxants) conducted at the Property for or disturb the sole purpose use or occupancy of inspecting any occupant of any Property or (iii) damage any Property (or any portion thereof). In conducting the Property foregoing inspection, Purchaser and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit at all times comply with, and shall be subject to, the rights of the tenants under the Leases (and any boringspersons claiming under or through such tenants). Seller may from time to time establish reasonable rules of conduct for Purchaser and Purchaser's Representatives in furtherance of the foregoing. Purchaser shall schedule and coordinate all inspections, drillings including, without limitation, any environmental tests and tenant interviews, with Sellers and shall give Sellers at least two (2) Business Days' prior notice thereof. Sellers shall be entitled to have a representative present at all times during each such inspection and each interview of any tenant. Purchaser agrees to pay to Sellers on demand the cost of repairing and restoring any damage or samplings disturbance which Purchaser or Purchaser's Representatives shall cause to be done on the Property without the SellerProperty. All inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or Purchaser's prior written consent. Any entry upon the Property Representatives relating to such inspection and all Investigations its other due diligence shall be at the sole risk and expense of Purchaser. In the event that the Closing hereunder shall not occur for any reason whatsoever (other than Sellers' default), Purchaser shall promptly return to Sellers or destroy all copies of all due diligence materials delivered by or on behalf of Sellers to Purchaser. Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair Representatives shall not be permitted to conduct borings of any damage to the Property resulting from or drilling in or on any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigationspreparation of an environmental audit or in connection with any other inspection of any Property without the prior written consent of Sellers which shall not be unreasonably withheld or delayed (and, if such consent is given, Purchaser shall be obligated to pay to Sellers on demand the cost of repairing and restoring any damage as aforesaid, and, if requested by Sellers, all such reasonably estimated costs in advance). The provisions of Section 23(c) shall survive the equipment, materials, and substances generated, used Closing or brought onto the Property pose no threat to the safety or health any termination of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;this Agreement.
(d) if Prior to conducting any physical inspection or testing at any Property, other than mere visual examination, including without limitation, boring, drilling and sampling of soil, Purchaser shall obtain, and during the Closing fails to occur, furnish to the Seller within thirty (30) days period of the originally scheduled Closing Datesuch inspection or testing shall maintain, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's its expense, a policy of comprehensive general public liability insurance with insurance, including a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile contractual liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damageendorsement, and an excess umbrella personal injury liability policy for bodily injury and property damage in coverage, with Sellers, the minimum amount of $3,000,000Existing Manager, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3if any, as additional insureds, against from an insurer reasonably acceptable to Sellers, which insurance policies must have limits for bodily injury and death of not less than Three Million Dollars ($3,000,000) for any injuries or damages one occurrence and not less than Three Million Dollars ($3,000,000) for property damage liability for any one occurrence. Prior to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' making any entry upon the any Property, Purchaser shall furnish to Sellers a certificate of insurance evidencing the foregoing coverages.
(iie) any Investigations or other activities conducted thereonPurchaser agrees to indemnify and hold Sellers and Existing Manager and their respective direct and indirect shareholders, officers, directors, partners, principals, members, employees, agents and contractors, and any successors or assigns of the foregoing (iiicollectively with Seller, "Seller Related Parties") any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claimslosses, demands, causes of action, lossescosts, damages, liabilitiesliens, costs and claims, liabilities or expenses (including, without limitationbut not limited to, reasonable attorneys' fees fees, court costs and disbursements), suffered or ) incurred by the Seller or any of the Seller's Affiliates and Related Parties arising out from or by reason of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the access to, or inspection of, any Property, (ii) or any Investigations tests, inspections or other activities due diligence conducted thereon by the or on behalf of Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigationsbut not for Losses caused by previously undisclosed conditions). The provisions of this Section 4.1 23(e) shall survive the Closing or any termination of this Agreement and the ClosingAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tanger Properties LTD Partnership /Nc/)
Access to the Property. During 6.3.1 Seller will allow Purchaser and its employees, agents, prospective lenders, attorneys, contractors, and representatives (collectively, “Purchaser’s Representatives”), prior to the Due Diligence PeriodDate at reasonable times during normal business hours upon twenty-four (24) hours’ prior notice (but subject to the rights of Subtenants under their applicable Dealer Leases) and without material interruption of Seller’s management of the Property or interference with Subtenants, residents, occupants or employees at the Purchaser and the Purchaser's Representatives shall have the right Property, to enter upon the Property (i) for the sole purpose of inspecting updating Surveys, inspections, engineering studies, Phase I environmental assessments and any other non-invasive tests, structural examinations or studies which Purchaser may reasonably deem necessary and (ii) to inspect the Property and, to the extent permitted by law, all books, records and making surveys, soil borings, engineering tests and other investigations, inspections and tests accounts relating to the operation thereof (collectively, "Investigations"clauses (i) and (ii), provided neither the “Investigations”). Purchaser nor shall be solely responsible for all of the Purchaser's Representatives costs and expenses of any Investigations and shall permit any boringsconduct such Investigations in good faith and with due diligence. Notwithstanding the foregoing, drillings or samplings to be done on the Property without the Seller's ’s prior written consent. Any entry upon the Property consent (which consent may be granted or withheld in Seller’s sole and all Investigations absolute discretion) shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair required for any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, which involve invasive or excavations of, any portion destructive testing of the Property used for such Investigations so that (or any portion thereof and including, without limitation, any Phase II environmental assessments or boring of the Property in connection with an environmental audit or otherwise) or any alteration of the Property (or any portion thereof). In the event Seller does provide its consent to any such invasive testing or alteration, Purchaser shall promptly restore the Property to its condition immediately prior to, as applicable, such test or alteration. Purchaser shall provide Seller with evidence that applicable contractors have named Seller as an additional insured to their respective insurance policies, which insurance policies must be approved by Seller in its reasonable discretion and maintained through the same condition that existed prior to such Investigations;
Closing Date. Purchaser shall (bi) fully comply with all Laws laws, rules and regulations applicable to Property and/or the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) not interfere with the use, occupancy, management, maintenance or operation of the Property (or any Investigations portion thereof) by Seller or other activities conducted thereonthe Subtenants under the Dealer Leases (or any of their respective agents, representatives, residents, occupants, guests, invitees, contractors, or employees), and (iii) any schedule all such Investigations at Seller’s convenience and shall permit Seller to have a representative present during all other activities Investigations undertaken by the hereunder. Purchaser and/or the Purchaser's Representatives in connection with the Propertyhereby agrees to indemnify, defend and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the hold harmless Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless each other Released Party (as such term is defined in Section 11.2) from and against any and all claimsloss, demandscost, causes of actionexpense, lossesdamage, damages, liabilities, costs claim and expenses liability (including, without limitation, reasonable attorneys' ’ fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates other Released Party and arising out of or in connection with (i) the Purchaser and/or Purchaser's and/or the Purchaser's Representatives' ’s Representatives entry upon the Property, (ii) any Investigations or and other activities conducted thereon with respect to the Property by the Purchaser or the Purchaser's ’s Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigationsany and all Investigations and other activities undertaken by Purchaser or Purchaser’s Representatives. The provisions of this Section 4.1 6.3.1 shall not in any way be deemed to amend the provisions of Article 11. The indemnity set forth in this Section 6.3.1 shall survive the Closing and/or the termination of this Agreement and until the ClosingSurvival Date (as such term is defined in Section 26.1) set forth in Section 26.1.
6.3.2 Purchaser and/or Purchaser’s Representatives shall not contact, communicate or otherwise interfere with the normal conduct by Seller, the Subtenants or employees of the Property of their business at the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Franchise Group, Inc.)
Access to the Property. During (a) Following the Due Diligence PeriodEffective Date, Purchaser shall have the right, subject to the remainder of this Section 4.2 and subject to the Lease, to access the Property solely for the benefit of Purchaser and those acting on behalf of Purchaser, actually or prospectively, for the purpose of examining the same in anticipation of its ownership of the Property, including, without limitation, to perform environmental testing; provided, however, that such access shall not be a basis for evaluating the purchase and sale herein agreed to by Purchaser nor give rise to a contingency or condition to the performance of Purchaser’s obligations hereunder. In the case of any such entry, Purchaser shall: (i) in all events give at least forty-eight (48) hours’ telephonic advance notice to Seller so that Seller may, at its option, have a representative designated by Seller present during each visit to the Property; and (ii) use commercially reasonable efforts to minimize any interference with the use or operation of the Property. Purchaser shall not perform any environmental testing without first advising Seller of the nature and scope of the test(s), and the entity performing the test(s). Any such access shall be limited to normal business hours unless otherwise approved by Tenant and Purchaser shall cooperate with any reasonable request by Seller in connection with the timing of any such access. The results of any such inspection (whether evidencing latent or patent defects in the Property or the existence or nonexistence of hazardous materials), or any information or matter discovered by Purchaser relating to the Tenant or the Lease, economic projections or market studies concerning the Property, any development rights, taxes, bonds, covenants, conditions and restrictions affecting the Property, air quality, the utilities serving the Property, any zoning, environmental or building laws, rules or regulations affecting the Property, the use or occupancy of the Property or any part thereof, the suitability of the Property as the subject of a cooperative or condominium conversion, or otherwise disclosing a condition which is undesirable or in violation of any law or governmental rule, regulation, ordinance or order shall not be grounds for any modification of the respective obligations of Seller and Purchaser hereunder or for any amendment or modification of this Agreement. In the event Purchaser discovers a preexisting condition at the Property, Purchaser hereby covenants that it shall not disclose such condition to any person other than Purchaser's consultants, attorneys, advisors, employees, accountants, rating agencies, financiers, investors, joint venture partners, potential lenders, potential insurance companies, and any of their affiliated entities unless Purchaser is required to disclose the discovery of such existing conditions to Tenant pursuant to the Lease or a governmental authority pursuant to applicable law (and Purchaser shall immediately notify Seller of such pending disclosure and provide Seller an opportunity to minimize such disclosure). Further, and notwithstanding anything to the contrary set forth above, Purchaser or any sponsored entity of Purchaser and Seller may disclose any of such information if required in litigation, if any (whether arising out of this Agreement or otherwise) or if required by law (including, without limitation, any rule or regulation of the Securities and Exchange Commission). Purchaser has furnished (or caused to be furnished) to Seller a certificate naming Seller (and its property manager) as additional insureds on Purchaser's Representatives ’s or its agent’s commercial general liability insurance policy as reasonably approved by Seller. Purchaser agrees to maintain such coverage for so long as this Agreement remains in effect.
(b) All: (i) information provided by Seller to Purchaser; and (ii) information obtained by Purchaser relating to the Property in writing from third parties in the course of Purchaser’s review, including, without limitation, any environmental assessment or audit (all of the items identified in this clause (ii) being hereinafter sometimes collectively referred to as the “Reports”) shall be treated as confidential information by Purchaser and Purchaser shall instruct all of its employees, agents, representatives and contractors as to the confidentiality of all such information unless Purchaser is required to disclose such information in the Reports to Tenant pursuant to the Lease or a governmental authority pursuant to applicable law (including, without limitation, any rule or regulation of the Securities and Exchange Commission) or if required in litigation, if any (whether arising out of this Agreement or otherwise). Prior to Closing, Purchaser shall have the right to enter upon confer and communicate with Tenant’s representatives concerning the Property for completion of Tenant Improvements in accordance with Tenant’s plans and budgets, including, but not limited to, the sole purpose status of inspecting the Property completion of remediation work and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;related test results.
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintainedindemnify, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury defend and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the hold harmless Seller and certain of Seller's Affiliates listed on Schedule 3its direct and indirect principals, as additional insuredsagents, against any injuries or damages to persons or members, partners, employees, officers, directors, affiliates, lenders, property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, managers and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless asset managers from and against any and all claims, demands, causes of actionliabilities, losses, damages, liabilities, costs damages and expenses (including, without limitation, reasonable attorneys' fees and disbursements)’ fees) resulting from, suffered relating to or incurred by the Seller or any of the Seller's Affiliates and arising out of or any access to the Property pursuant to this Section 4.2, including, without limitation, in connection with any environmental testing, or breach of this Section 4.2, whether occasioned by the acts or omissions of Purchaser or those of its employees, agents, vendors, representatives or contractors unless such claims arise or are caused by Seller’s negligence or willful misconduct; provided, however, that Purchaser shall have no obligation to indemnify the Indemnified Parties with respect to Purchaser’s mere discovery (ias opposed to exacerbation) of pre-existing conditions or issues. This indemnification by Purchaser shall survive the Purchaser's and/or Closing or the Purchaser's Representatives' entry upon termination of this Agreement, as applicable.
(d) Purchaser agrees, promptly following Seller’s request, to deliver to Seller copies of all of the Reports in the event Purchaser does not elect to proceed with the acquisition of the Property, (ii) any Investigations without warranty or other activities conducted thereon representation by Purchaser. Purchaser’s obligation to deliver the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 Reports to Seller shall survive the termination of this Agreement and the ClosingAgreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Access to the Property. During (a) Provided Buyer has delivered evidence of Buyer’s Liability Insurance (as hereinafter defined) to Sellers and Sellers have approved the Due Diligence Periodsame (which approval shall not be unreasonably withheld, conditioned or delayed), Sellers will allow Buyer and its employees, agents, prospective lenders, attorneys, contractors and representatives (collectively, “Buyer Representatives”), prior to the Purchaser and Closing Date at reasonable times during normal business hours upon two (2) Business Days’ prior notice (but subject to the Purchaser's Representatives shall have the right rights of Tenants under their Leases), to enter upon the Property Properties (i) for the sole purpose of inspecting the Property and making performing surveys, soil boringsphysical inspections, engineering tests studies and other investigations, inspections and tests environmental assessments which Buyer may reasonably desire (collectively, "“Investigations"”), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations Buyer shall be at the sole risk and expense solely responsible for all of the Purchaser costs and expenses of any Investigations and shall conduct such Investigations in good faith and with due diligence. Notwithstanding the Purchaser's Representativesforegoing, without Seller’s prior approval, which shall not be unreasonably withheld, conditioned or delayed, Buyer shall not be permitted to conduct any Investigations which involve invasive or destructive testing of the Properties (or any portion thereof and including, without limitation, any boring of the Properties in connection with an environmental audit or otherwise) or any alteration of the Properties (or any portion thereof). The Purchaser shall:
(a) promptly repair any damage In the event Sellers do provide their consent to the Property resulting from any such Investigations and replaceinvasive testing or alteration, refill and regrade any holes made in, or excavations of, any portion of Buyer shall promptly restore the applicable Property used for such Investigations so that the Property shall be in the same to its condition that existed immediately prior to such Investigations;
test or alteration. Buyer shall provide Sellers with evidence that applicable contractors have named Sellers and The Mxxx Xxxxxxx Company (bthe “Manager”) as additional insureds in their respective insurance policies, which insurance policies must be approved by Sellers in their reasonable discretion and maintained through the Closing Date. Buyer shall (x) fully comply with all Laws laws, rules and regulations applicable to Properties and/or the Investigations and all other activities undertaken in connection therewith;
, (cy) take all actions and implement all protections necessary to ensure that all actions taken in connection not interfere with the Investigationsuse, and occupancy, management, maintenance or operation of the equipmentProperties (or any portion thereof) by Sellers, materialsManager, and substances generated, used or brought onto the Property pose no threat to Tenants under the safety or health of persons or the environment, and cause no damage to the Property Leases or other property occupants of the Seller Properties (or other persons;
(d) if the Closing fails to occurany of their respective agents, furnish to the Seller within thirty (30) days of the originally scheduled Closing Daterepresentatives, at no cost guests, invitees, contractors, or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereonemployees), and (iiiz) any and permit Sellers to have a representative present during all other activities Investigations undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Propertyhereunder. With at least two (2) Business Days prior written notice from Buyer, Sellers shall arrange for Buyer to conduct tenant interviews, provided such Tenants are agreeable to such interview, and deliver evidence Sellers shall have the right to have a representative accompany Buyer on such interviews. Buyer may not, however, request any governmental investigations or inspections of such insurance policy the Properties; provided, however, nothing contained herein shall prevent Buyer from meeting with governmental agencies to discuss and confirm the Seller within ten (10) days zoning of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates Properties. Buyer hereby agrees to indemnify, defend and hold the Seller harmless Sellers, Manager and the Seller's Affiliates harmless each other Released Party (as hereafter defined) from and against any and all claimsloss, demandscost, causes of actionexpense, lossesdamage, damages, liabilities, costs claim and expenses liability (including, without limitation, reasonable attorneys' ’ fees and disbursements), suffered or incurred by the Seller Sellers, Manager or any of the Seller's Affiliates other Released Party and arising out of or in connection with (iI) the Purchaser's Buyer and/or the Purchaser's Representatives' Buyer’s representatives entry upon the PropertyProperties, (iiII) any Investigations or and other activities conducted thereon on the Properties by Buyer or Buyer’s representatives (but nothing contained herein shall impose any liability on Buyer solely as a result of Buyer’s mere discovery of a condition of the Purchaser or the Purchaser's RepresentativesProperty, including, but not limited to, environmental conditions), and (iiiIII) any liens or encumbrances filed or recorded against the any Property as a consequence of any and all Investigations and other activities undertaken by Buyer or Buyer’s representatives. Buyer shall procure, prior to entry upon the InvestigationsProperties, and maintain for at least one (1) year after the Effective Date commercial general liability insurance covering Buyer, Sellers, Manager and the Properties for actions taken by Buyer or Buyer’s representatives, contractors, agents or invitees on an occurrence, as opposed to claims made, basis and providing for a combined single limit for bodily injury and property damage of not less than **** ******* *** ****** ******* *************** per occurrence issued by companies and in form and substance reasonably satisfactory to Sellers (“Buyer’s Liability Insurance”), which insurance requirements may be satisfied with a combination of a primary policy and an excess policy, provided the same meet the requirements set forth in this Section 3.7(a). All of Buyer’s General Liability Insurance shall be primary and not contributing with any insurance maintained by Sellers or Manager to the extent of Buyer’s indemnity contained in this Section 3.7. Sellers and Manager shall be named as additional insureds under all of Buyer’s General Liability Insurance and Sellers and Manager shall be given written notice at least thirty (30) days prior to cancellation, material amendment or reduction of any such coverage. The provisions of this Section 4.1 3.7 shall not in any way be deemed to amend the provisions of Article XII. The indemnity set forth in this Section 3.7 shall survive the Closing and/or the termination of this Agreement and until the ClosingSurvival Date set forth in Section 24.9(a) hereof.
(b) Except as otherwise expressly permitted by Section 3.7(a) hereof, Buyer and/or Buyer’s representatives shall not communicate or otherwise interfere with the Tenants or with the normal conduct by Sellers or the Manager of their business at the Properties.
Appears in 1 contract
Samples: Commercial Multi Property Agreement of Purchase and Sale (Duke Realty Limited Partnership/)
Access to the Property. During Commencing on the Effective Date hereof and continuing until the expiration of the Due Diligence Period, Seller shall allow Buyer and Buyer’s Representatives access to the Purchaser Property at reasonable times in order to conduct such environmental, soil, engineering or any other studies thereon as Buyer, in its reasonable discretion, shall deem advisable; provided, however: (a) such access shall not interfere with the operation of the Property or Seller’s adjacent properties and shall be subject to the Purchaser's Representatives terms of the Leases; (b) Buyer shall provide at least twenty-four (24) hours notice prior to each visit to the Property by any Buyer’s Representatives, and representatives of Seller shall have the right to enter upon accompany Buyer’s Representatives during each such visit; (c) any invasive testing shall require Seller’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; and (d) after the Property for expiration of the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Due Diligence Period Buyer’s Representatives shall permit not be permitted to perform any borings, drillings further testing or samplings to be done on other physical evaluation of the Property without the Seller's prior written consentconsent of Seller, which shall not be unreasonably conditioned, withheld or denied. Any entry upon Buyer shall deliver promptly to Seller copies of all Buyer’s Reports. Buyer shall immediately return the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed existing prior to such Investigations;
(b) fully comply with all Laws applicable any tests and inspections. Prior to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought any entry onto the Property pose no threat by Buyer or any Buyer’s Representatives, Buyer or such Buyer’s Representative shall (i) obtain and deliver to the safety or health of persons or the environment, Seller an insurance certificate (in form and cause no damage substance reasonably acceptable to the Property or other property of the Seller or other persons;
Seller) evidencing that Buyer (d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of and any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to Buyer’s Representative entering the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy have in full force and effect policies of comprehensive general public liability insurance which insure Buyer (and any Buyer’s Representative entering the Property) with a combined single limit liability insurance limits of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a 2,000,000 combined single limit of $1,000,000 per occurrence covering liabilities for bodily injury and property damagepersonal injury, and an excess umbrella liability policy for bodily injury death and property damage in arising out of activities on or about the minimum amount of $3,000,000Property by Buyer and Buyer’s Representatives, insuring the Purchaser and the which policy shall: (i) name Seller and certain of Seller's Affiliates listed on Schedule 3, its mortgagee (if any) as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, ; (ii) any Investigations be underwritten by an insurance company licensed to do business in the State of Texas and having a Best’s rating of A/VII or other activities conducted thereon, and better; (iii) any include a contractual liability endorsement with respect to Buyer’s indemnification obligations hereunder; and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy (iv) not be cancelable or subject to amendment without at least 30 days’ advance written notice to Seller. Buyer shall use its best efforts to minimize damage to the Seller within ten (10) days of this Agreement; and
(f) indemnify Property and shall cause the Seller Property to be restored to substantially the condition existing immediately prior to entry thereon by Buyer and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses Buyer’s Representatives (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 which obligation shall survive the termination of this Agreement and the Closingshall not be subject to any limitation of remedies set forth in this Agreement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Global Income Trust, Inc.)
Access to the Property. During Section 5.01 Seller and Purchaser have executed that certain Access Agreement dated as of the Due Diligence Period, Effective Date (the Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property for the sole purpose of inspecting the Property and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "InvestigationsAccess Agreement"), provided neither the provisions of which are hereby incorporated herein by reference. In accordance with the Access Agreement and this Section 5.01, Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage have reasonable access to the Property resulting from at all reasonable times during normal business hours, upon appropriate notice to Tenants as permitted or required under Leases for the purpose of conducting any such Investigations and replacetests deemed reasonably necessary by Purchaser, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees surveys and disbursements)architectural, suffered engineering, geotechnical and environmental inspections and tests. With respect to any intrusive inspection or incurred test (i.e., core sampling) Purchaser must first obtain Seller’s prior written consent, which consent shall not be unreasonably withheld. Purchaser shall bear the cost of all such inspections or tests and shall be responsible for any wastes generated by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Propertythose tests, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 which obligation shall survive the termination of this Agreement Contract. In addition, Purchaser and Purchaser’s representatives shall not meet with any governmental authority for the purpose of gathering information in connection with the transaction contemplated by this Contract; provided, however, that Purchaser may contact local governmental and quasi- governmental authorities for the sole purposes of (i) conducting a title search of the Property and (ii) obtaining such existing information in such authorities’ files regarding the Property’s compliance with applicable building, health and safety codes; provided, however, that in no event shall Purchaser request or otherwise initiate any governmental or quasi-governmental investigation or inspection of the Property or any part thereof. Seller shall reasonably cooperate with Purchaser in its due diligence investigations of the Property.
Section 5.02 In conducting any inspections, investigations or tests of the Property and/or Property Information, Purchaser and its agents and representatives shall: (a) not unreasonably disturb the Tenants or interfere with their use of the Property pursuant to their respective leases; (b) not unreasonably interfere with the operation and maintenance of the Property; (c) not materially damage any part of the Property or any personal property of any Tenant; (d) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Property; (e) not permit any liens to attach to the Land or the Buildings and tangible personal property by reason of the exercise of its rights hereunder; and (f) repair any damage to the Land or the Buildings and Personal Property caused by Purchaser in connection with any such inspection or tests. Purchaser’s obligations under this Section 5.02 shall survive the termination of this Contract. The term "Property Information" shall mean, collectively the documents relating to the Property as listed on Schedule 5.02. At Closing, Seller shall update Schedule 5.02 to include all documents made available to Purchaser relating to the Property after the Effective Date.
Appears in 1 contract
Access to the Property. During Subject to rights of the Due Diligence Periodtenants under Space Leases, from the Purchaser Effective Date until the Closing (or earlier termination of this Agreement), Purchaser, and the any employee, agent, principal or contractor of Purchaser's Representatives , shall have the right to enter upon the Property for upon reasonable advance notice during ordinary business hours to conduct reasonable non-invasive inspections, studies, surveys, analyses and tests of the sole purpose of inspecting Property. Seller may have a representative present at any time that Purchaser or its representative is on the Property. Purchaser shall promptly notify Seller of, and shall promptly restore, any damage to the Property and making surveyscaused by Purchaser or Purchaser’s employees, soil boringsagents, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit principals or contractors during any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any such entry upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) satisfy any and all other activities undertaken by mechanic’s liens which may be filed against the Purchaser and/or the Purchaser's Representatives in connection with Property as a result of any such entry onto or inspection of the Property. Purchaser shall promptly notify Seller of, and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates shall indemnify, defend and hold the Seller (and the Seller's Affiliates its respective principals, officers, directors, employees, agents, contractors, tenants and subtenants) harmless from and against against, any and all claims, demandsliabilities, causes of actiondamages, losses, damages, liabilities, costs and or expenses (including, without limitation, including attorneys' ’ fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and expenses) (other than those arising out of Seller’s or in connection with (iits agents’ gross negligence or intentional misconduct) the Purchaser's and/or the Purchaser's Representatives' arising as a result of any entry by Purchaser or any employee, agent, principal or contractor of Purchaser upon the Property, (ii) Property or any Investigations inspections or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigationsforegoing on the Property. The provisions of this Section 4.1 regarding indemnification shall survive the termination of this Agreement and or the Closing, whichever is applicable. In addition to the foregoing contractual obligations, Purchaser shall, and shall cause its outside consultant(s) who are performing the physical inspections of the Property for Purchaser to, obtain and provide to Seller, prior to Purchaser or any employee, agent, principal or contractor of Purchaser entering upon the Property after the Effective Date, evidence of comprehensive general liability insurance coverage in an amount not less than $5,000,000 covering Purchaser’s obligation under its indemnity obligation and naming Seller as additional named insureds, which policy(ies) shall be kept in force and effect until the Closing Date. Purchaser shall not perform any inspections, studies, surveys, analyses or tests of the Property without the prior written consent of Seller. Except as otherwise expressly set forth in this Agreement, Purchaser shall not be entitled to terminate this Agreement or receive any reduction of the Purchase Price based upon matters disclosed by any inspection of the Property.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Steinway Musical Instruments Inc)
Access to the Property. During 6.3.1 Provided Purchaser has delivered evidence of Purchaser’s Liability Insurance (as hereinafter defined) to Seller and Seller has approved the same (which approval shall not be unreasonably withheld, conditioned or delayed), Seller will allow Purchaser and its employees, agents, prospective lenders, attorneys, contractors, and representatives (collectively, “Purchaser’s Representatives”), prior to the Due Diligence PeriodDate at reasonable times during normal business hours upon two (2) Business Days’ prior notice (but subject to the rights of Subtenant under the Subleases) and without material interruption of Seller’s management of the Property or interference with Subtenant, residents, occupants or employees at the Purchaser and the Purchaser's Representatives shall have the right Property, to enter upon the Property (i) for the sole purpose of inspecting updating Surveys, inspections, engineering studies, Phase I environmental assessments and any other non-invasive tests, structural examinations or studies which Purchaser may reasonably deem necessary, and (ii) to inspect the Property and, to the extent permitted by law, all books, records and making surveys, soil borings, engineering tests and other investigations, inspections and tests accounts relating to the operation thereof (collectively, "Investigations"clauses (i) and (ii), provided neither the “Investigations”). Purchaser nor shall be solely responsible for all of the Purchaser's Representatives costs and expenses of any Investigations and shall permit any boringsconduct such Investigations in good faith and with due diligence. Notwithstanding the foregoing, drillings or samplings to be done on the Property without the Seller's ’s prior written consent. Any entry upon the Property consent (which consent may be granted or withheld in Seller’s sole and all Investigations absolute discretion) shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair required for any damage to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, which involve invasive or excavations of, any portion destructive testing of the Property used for such Investigations so that (or any portion thereof and including, without limitation, any Phase II environmental assessments or boring of the Property in connection with an environmental audit or otherwise) or any alteration of the Property (or any portion thereof). In the event Seller does provide its consent to any such invasive testing or alteration, Purchaser shall be in promptly restore the same Property to its condition that existed immediately prior to to, as applicable, such Investigations;
test or alteration. Purchaser shall (bi) fully comply with all Laws laws, rules and regulations applicable to Property and/or the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) not interfere with the use, occupancy, management, maintenance or operation of the Property (or any Investigations portion thereof) by Seller or other activities conducted thereonSubtenant under that certain (i) Commercial Lease Agreement, dated as of October 1, 2021, between Subtenant and Seller, and (ii) Commercial Lease Agreement, dated as of October 1, 2021, between Subtenant and Seller (collectively, the “Subleases”) (or any of their respective agents, representatives, residents, occupants, guests, invitees, contractors, or employees), and (iii) any schedule all such Investigations at Seller’s convenience and shall permit Seller to have a representative present during all other activities Investigations undertaken by the hereunder. Purchaser and/or the Purchaser's Representatives in connection with the Propertyhereby agrees to indemnify, defend and deliver evidence of such insurance policy to the Seller within ten (10) days of this Agreement; and
(f) indemnify the hold harmless Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses each other Released Party (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and the Closing.such term is
Appears in 1 contract
Samples: Purchase and Sale Agreement (Franchise Group, Inc.)
Access to the Property. During Subject in all respects to Purchaser’s compliance with the Due Diligence Periodterms, conditions and requirements under the Ground Lease, Seller agrees that, from the Effective Date and until the Expiration Date, Seller will permit Purchaser and Purchaser Representatives, at Purchaser’s sole risk, cost and expense, to access the Property during normal business hours for purposes of conducting such physical inspections, reports and evaluations of the Property as Purchaser deems necessary in order to assess the suitability of the Property for Purchaser's Representatives ’s intended use; provided, that Purchaser shall provide no less than one (1) business day advance notice to Seller (which notice may be provided by phone or email), and Purchaser hereby acknowledges and agrees that Seller may (depending on the nature of the investigations to be conducted) need additional advance notice to properly coordinate with BBB prior to Seller’s access to Property. Seller shall have the right to enter upon have a representative present during any such inspection, and Purchaser shall make reasonable efforts to allow Seller to have such a representative present. Subject in all respects to the terms and requirements of the Ground Lease, Seller hereby grants to Purchaser a temporary license to access the Property for the sole purpose of inspecting performing the Property and making surveys, soil borings, engineering tests and other investigations, foregoing inspections and tests investigations during the Due Diligence Period (collectively, "Investigations"), provided neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property without the Seller's prior written consent. Any entry and during subsequent entries upon the Property and all Investigations shall be at the sole risk and expense of the Purchaser and the Purchaser's Representatives. The Purchaser shall:
(a) promptly repair any damage pursuant to the Property resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of, any portion of the Property used for such Investigations so that the Property shall be in the same condition that existed prior to such Investigations;
(b) fully comply with all Laws applicable to the Investigations and all other activities undertaken in connection therewith;
(c) take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Property pose no threat to the safety or health of persons or the environment, and cause no damage to the Property or other property of the Seller or other persons;
(d) if the Closing fails to occur, furnish to the Seller within thirty (30) days of the originally scheduled Closing Date, at no cost or expense to the Seller, copies of any surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations which the Purchaser shall obtain with respect to the Property;
(e) maintain or cause to be maintained, at the Purchaser's expense, a policy of comprehensive general public liability insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage, automobile liability coverage including owned and hired vehicles with a combined single limit of $1,000,000 per occurrence for bodily injury and property damage, and an excess umbrella liability policy for bodily injury and property damage in the minimum amount of $3,000,000, insuring the Purchaser and the Seller and certain of Seller's Affiliates listed on Schedule 3, as additional insureds, against any injuries or damages to persons or property that may result from or are related to (i) the Purchaser's and/or the Purchaser's Representatives' entry upon the Property, (ii) any Investigations or other activities conducted thereon, and (iii) any and all other activities undertaken by the Purchaser and/or the Purchaser's Representatives in connection with the Property, and deliver evidence of such insurance policy to the Seller within ten (10) days Section 2.2.6 of this Agreement; and
(f) indemnify the Seller and the Seller's Affiliates and hold the Seller and the Seller's Affiliates harmless from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys' fees and disbursements), suffered or incurred by the Seller or any of the Seller's Affiliates and arising out of or in connection with (i) the Purchaser's and/or the Purchaser's Representatives' entry such temporary license to expire upon the Property, (ii) any Investigations or other activities conducted thereon by the Purchaser or the Purchaser's Representatives, and (iii) any liens or encumbrances filed or recorded against the Property as a consequence earlier of the Investigations. The provisions of this Section 4.1 shall survive the termination of this Agreement and in accordance with its terms or the Closing. In conducting any inspections, investigations or tests on or within the Property, or any part of the Property, Purchaser and its agents and representatives shall: (1) not unreasonably interfere with Seller’s (or any of Seller’s tenants, licensees or invitees’) use of the Property; (2) not damage any part of the Property; (3) not injure or otherwise cause bodily harm to Seller or any third party or their respective agents, guests, invitees, contractors and employees; (4) comply with all applicable Laws; and (5) not reveal or disclose (other than to Purchaser’s legal counsel, accountant, Purchaser’s Representatives and/or other consultants) any information obtained concerning the Property other than as expressly permitted pursuant to the terms of this Agreement or as required by applicable law, after notice to Seller of any such required disclosure to the extent permitted by applicable law. Notwithstanding anything herein to the contrary, Purchaser shall perform no invasive testing or procedures at the Property, including, but not limited to a Phase I Environmental or any drilling of any kind without first providing evidence of the insurance as required pursuant to Section 2.2.3 hereof, providing written notice regarding what tests will be performed and where they will be performed, and obtaining Seller’s prior written consent which shall not be unreasonably withheld.
Appears in 1 contract
Samples: Purchase and Sale Agreement (LMP Automotive Holdings, Inc.)
