Common use of Due Diligence Inspection; Waiver Clause in Contracts

Due Diligence Inspection; Waiver. AS-IS Condition. (a) The BRI Partnership acknowledges that prior to the execution of this Agreement, the BRI Partnership has been afforded the opportunity to inspect the physical condition, financial condition and market condition of the Property and, except as set forth herein with respect to the Environmental Inspection (as defined in Section 1.04(b)), the BRI Partnership hereby waives any right to terminate this Agreement based upon any matter which was the subject to said inspections. (b) Notwithstanding the provisions of Section 1.04(a), subject to the rights of the tenants under the Leases, the BRI Partnership and their authorized agents and representatives may, from time to time up to and including August 31, 1997 (the "Due Diligence Period") during regular business hours and on reasonable prior notice to the Transferor Partnership, inspect the Property to determine the presence of any Hazardous Materials (as defined in Section 5.21) and the compliance of the Property with Environmental Laws (as defined in Section 5.21) and in connection therewith to conduct such tests and observations and compile such information as the BRI Partnership, in its sole discretion may deem appropriate (the "Environmental Inspection"). The BRI Partnership shall provide a copy of any third party environmental reports obtained by the BRI Partnership, without representation or warranty, and subject to the limitations on use set forth therein, to the Transferor Partnership promptly after its receipt thereof. No such inspection, however, shall constitute a waiver or relinquishment on the part of the BRI Partnership of its right to rely upon the covenants, representations, warranties or agreements made by the Transferor Partnership in this Agreement. Should the BRI Partnership decide, in its sole judgment, during the Due Diligence Period that based upon the results of the Environmental Inspection, it no longer desires to proceed with the transactions contemplated hereby, the BRI Partnership shall have the right to terminate this Agreement by giving written notice of its election to do so to the Transferor Partnership on or before the last day of the Due Diligence Period, and upon the giving of such notice this Agreement shall be of no further force or effect. If the BRI Partnership shall fail to exercise such termination right within the Due Diligence Period, the BRI Partnership shall be conclusively deemed to have waived any right it may have had to terminate this Agreement pursuant to this Section 1.04(b). The BRI Partnership shall pay when due all fees and expenses incurred in the performance of the Environmental Inspection. (c) From and after the date of this Agreement, the Transferor Partnership shall permit the BRI Partnership's authorized agents and representatives (including its accountants) to examine (including, without limitation, the right to audit) the Transferor Partnership's and the Borrower Partnership's books, financial records, Service Contracts, Leases and tenant files pertaining to the operation of the Property prior to the Closing. The BRI Partnership's agents and representatives shall be permitted access to such records and files during regular business hours. To the extent that any of the Transferor Partnership's or the Borrower Partnership's financial records relating to the Property have been audited, the Transferor Partnership agrees to deliver any reports relating to such audits to the BRI Partnership. The Transferor Partnership shall provide the BRI Partnership with such information as the Transferor Partnership may have with respect to actual expenditures made for all repairs, maintenance, operation and upkeep of the Property, including, without limitation, to the extent in the possession of the Transferor Partnership, all taxes and utility payments made within three (3) years prior to the Closing and dates of construction, installation and major repairs to the Property. All information obtained by the BRI Partnership or its agents and representatives pursuant to this Section 1.04(c) shall be treated as confidential, shall not be disclosed to others until and unless the Closing occurs, and if such information is in written form, such information shall be returned to the Transferor Partnership if the Closing does not occur. (d) The BRI Partnership shall indemnify the Transferor Partners against and from all damage to the Property and/or claims of tenants or other third parties resulting from any entry on the Property by the BRI Partnership or any agent, contractor, consultant or other representative of the BRI Partnership, or any tests or other activities conducted in or on the Property by them, or any of them, together with all expenses incurred by the Transferor Partners by reason thereof including, without limitation, reasonable attorneys' fees and disbursements; provided, however, that nothing contained herein is intended to obligate the BRI Partnership to indemnify, pay or otherwise reimburse the Transferor Partners for any costs of remediation or clean-up, fines, penalties, assessments or similar charges for any condition existing at the Property solely by reason of the fact that the BRI Partnership or its agents, contractors, consultants or other representatives discover the existence of such condition during the course of conducting tests or other activities on the Property. The provisions of this Section 1.04(d) shall survive the Closing or any termination of this Agreement; provided, however, that no claim by the Transferor Partners under this Section 1.04(d) for damage to the Property shall be made if (i) the Closing occurs or (ii) more than 90 days after the termination of this Agreement if the Closing does not occur, except for damage claims made by tenants as to which the time for asserting any such claim shall be not later than 180 days after the termination of this Agreement. If the Closing occurs, the BRI Partnership shall not have any claim against the Transferor Partners by reason of any damage to the Property of the nature specified above or by reason of any claim against which the BRI Partnership is indemnifying the Transferor Partners hereunder.

Due Diligence Inspection; Waiver. AS-IS Condition. (a) The BRI Partnership acknowledges that prior to the execution of this Agreement, the BRI Partnership has been afforded the opportunity to inspect the physical condition, financial condition and market condition of the Property and, except as set forth herein with respect to the Environmental Inspection (as defined in Section 1.04(b)), the BRI Partnership hereby waives any right to terminate this Agreement based upon any matter which was the subject to said inspections. (b) Notwithstanding the provisions of Section 1.04(a), subject to the rights of the tenants under the Leases, the BRI Partnership and their authorized agents and representatives may, from time to time up to and including August 31, 1997 (the "Due Diligence Period") during regular business hours and on reasonable prior notice to the Transferor Partnership, inspect the Property to determine the presence of any Hazardous Materials (as defined in Section 5.21) and the compliance of the Property with Environmental Laws (as defined in Section 5.21) and in connection therewith to conduct such tests and observations and compile such information as the BRI Partnership, in its sole discretion may deem appropriate (the "Environmental Inspection"). The BRI Partnership shall provide a copy of any third party environmental reports obtained by the BRI Partnership, without representation or warranty, and subject to the limitations on use set forth therein, to the Transferor Partnership promptly after its receipt thereof. No such inspection, however, shall constitute a waiver or relinquishment on the part of the BRI Partnership of its right to rely upon the covenants, representations, warranties or agreements made by the Transferor Partnership in this Agreement. Should the BRI Partnership decide, in its sole judgment, during the Due Diligence Period that based upon the results of the Environmental Inspection, it no longer desires to proceed with the transactions contemplated hereby, the BRI Partnership shall have the right to terminate this Agreement by giving written notice of its election to do so to the Transferor Partnership on or before the last day of the Due Diligence Period, and upon the giving of such notice this Agreement shall be of no further force or effect. If the BRI Partnership shall fail to exercise such termination right within the Due Diligence Period, the BRI Partnership shall be conclusively deemed to have waived any right it may have had to terminate this Agreement pursuant to this Section 1.04(b). The BRI Partnership shall pay when due all fees and expenses incurred in the performance of the Environmental Inspection. (c) From and after the date of this Agreement, the Transferor Partnership shall permit the BRI Partnership's authorized agents and representatives (including its accountants) to examine (including, without limitation, the right to audit) the Transferor Partnership's and the Borrower Partnership's books, financial records, Service Contracts, Leases and tenant files pertaining to the operation of the Property prior to the Closing. The BRI Partnership's agents and representatives shall be permitted access to such records and files during regular business hours. To the extent that any of the Transferor Partnership's or the Borrower Partnership's financial records relating to the Property have been audited, the Transferor Partnership agrees to deliver any reports relating to such audits to the BRI Partnership. The Transferor Partnership shall provide the BRI Partnership with such information as the Transferor Partnership may have with respect to actual expenditures made for all repairs, maintenance, operation and upkeep of the Property, including, without limitation, to the extent in the possession of the Transferor Partnership, all taxes and utility payments made within three (3) years prior to the Closing and dates of construction, installation and major repairs to the Property. All information obtained by the BRI Partnership or its agents and representatives pursuant to this Section 1.04(c) shall be treated as confidential, shall not be disclosed to others until and unless the Closing occurs, and if such information is in written form, such information shall be returned to the Transferor Partnership if the Closing does not occur. (d) The BRI Partnership shall indemnify the Transferor Partners against and from all damage to the Property and/or claims of tenants or other third parties resulting from any entry on the Property by the BRI Partnership or any agent, contractor, consultant or other representative of the BRI Partnership, or any tests or other activities conducted in or on the Property by them, or any of them, together with all expenses incurred by the Transferor Partners by reason thereof including, without limitation, reasonable attorneys' fees and disbursements; provided, however, that nothing contained herein is intended to obligate the BRI Partnership to indemnify, pay or otherwise reimburse the Transferor Partners for any costs of remediation or clean-up, fines, penalties, assessments or similar charges for any condition existing at the Property solely by reason of the fact that the BRI Partnership or its agents, contractors, consultants or other representatives discover the existence of such condition during the course of conducting tests or other activities on the Property. The provisions of this Section 1.04(d) shall survive the Closing or any termination of this Agreement; provided, however, that no claim by the Transferor Partners under this Section 1.04(d) for damage to the Property shall be made if (i) the Closing occurs or (ii) more than 90 days after the termination of this Agreement if the Closing does not occur, except for damage claims made by tenants as to which the time thetime for asserting any such claim shall be not later than 180 days after the termination of this Agreement. If the Closing occurs, the BRI Partnership shall not have any claim against the Transferor Partners by reason of any damage to the Property of the nature specified above or by reason of any claim against which the BRI Partnership is indemnifying the Transferor Partners hereunder.

Due Diligence Inspection; Waiver. AS-IS Condition. (a) The BRI Partnership acknowledges that prior to the execution of this Agreement, the BRI Partnership has been afforded the opportunity to inspect the physical condition, financial condition and market condition of the Property and, except as set forth herein with respect to the Environmental Inspection (as defined in Section 1.04(b)), the BRI Partnership hereby waives any right to terminate this Agreement based upon any matter which was the subject to said inspections. (b) Notwithstanding the provisions of Section 1.04(a), subject to the rights of the tenants under the Leases, the BRI Partnership and their authorized agents and representatives may, from time to time up to and including August 31October 1, 1997 (the "Due Diligence Period") during regular business hours and on reasonable prior notice to the Transferor PartnershipCorporation, inspect the Property to determine the presence of any Hazardous Materials (as defined in Section 5.21) and the compliance of the Property with Environmental Laws (as defined in Section 5.21) and in connection therewith to conduct such tests and observations and compile such information as the BRI Partnership, in its sole discretion may deem appropriate (the "Environmental Inspection"). The BRI Partnership shall provide a copy of any third party environmental reports obtained by the BRI Partnership, without representation or warranty, and subject to the limitations on use set forth therein, to the Transferor Partnership Corporation promptly after its receipt thereof. No such inspection, however, shall constitute a waiver or relinquishment on the part of the BRI Partnership of its right to rely upon the covenants, representations, warranties or agreements made by the Transferor Partnership Corporation in this Agreement. Should the BRI Partnership decide, in its sole judgment, during the Due Diligence Period that based upon the results of the Environmental Inspection, it no longer desires to proceed with the transactions contemplated hereby, the BRI Partnership shall have the right to terminate this Agreement by giving written notice of its election to do so to the Transferor Partnership Corporation on or before the last day of the Due Diligence Period, and upon the giving of such notice this Agreement shall be of no further force or effect. If the BRI Partnership shall fail to exercise such termination right within the Due Diligence Period, the BRI Partnership shall be conclusively deemed to have waived any right it may have had to terminate this Agreement pursuant to this Section 1.04(b). The BRI Partnership shall pay when due all fees and expenses incurred in the performance of the Environmental Inspection. (c) From and after the date of this Agreement, the Transferor Partnership Corporation shall permit the BRI Partnership's authorized agents and representatives (including its accountants) to examine (including, without limitation, the right to audit) the Transferor Partnership's and the Borrower PartnershipCorporation's books, financial records, Service Contracts, Leases and tenant files pertaining to the operation of the Property prior to the Closing. The BRI Partnership's agents and representatives shall be permitted access to such records and files during regular business hours. To the extent that any of the Transferor Partnership's or the Borrower PartnershipCorporation's financial records relating to the Property have been audited, the Transferor Partnership Corporation agrees to deliver any reports relating to such audits to the BRI Partnership. The Transferor Partnership Corporation shall provide the BRI Partnership with such information as the Transferor Partnership Corporation may have with respect to actual expenditures made for all repairs, maintenance, operation and upkeep of the Property, including, without limitation, to the extent in the possession of the Transferor PartnershipCorporation, all taxes and utility payments made within three (3) years prior to the Closing and dates of construction, installation and major repairs to the Property. All information obtained by the BRI Partnership or its agents and representatives pursuant to this Section 1.04(c) shall be treated as confidential, shall not be disclosed to others until and unless the Closing occurs, and if such information is in written form, such information shall be returned to the Transferor Partnership Corporation if the Closing does not occur. (d) The BRI Partnership shall indemnify the Transferor Partners Corporation against and from all damage to the Property and/or claims of tenants or other third parties resulting from any entry on the Property by the BRI Partnership or any agent, contractor, consultant or other representative of the BRI Partnership, or any tests or other activities conducted in or on the Property by them, or any of them, together with all expenses incurred by the Transferor Partners Corporation by reason thereof including, without limitation, reasonable attorneys' fees and disbursements; provided, however, that nothing contained herein is intended to obligate the BRI Partnership to indemnify, pay or otherwise reimburse the Transferor Partners Corporation for any costs of remediation or clean-up, fines, penalties, assessments or similar charges for any condition existing at the Property solely by reason of the fact that the BRI Partnership or its agents, contractors, consultants or other representatives discover the existence of such condition during the course of conducting tests or other activities on the Property. The provisions of this Section 1.04(d) shall survive the Closing or any termination of this Agreement; provided, however, that no claim by the Transferor Partners Corporation under this Section 1.04(d) for damage to the Property shall be made if (i) the Closing occurs or (ii) more than 90 days after the termination of this Agreement if the Closing does not occur, except for damage claims made by tenants as to which the time for asserting any such claim shall be not later than 180 days after the termination of this Agreement. If the Closing occurs, the BRI Partnership shall not have any claim against the Transferor Partners Corporation by reason of any damage to the Property of the nature specified above or by reason of any claim against which the BRI Partnership is indemnifying the Transferor Partners Corporation hereunder.